exv10w1






Exhibit 10.1




EXECUTION COPY



 

 

SECOND RESTATED CREDIT AGREEMENT




 






PLAINS MARKETING, L.P., as Borrower,




BANK OF AMERICA, N.A., as Administrative Agent and initial LC Issuer,




BNP PARIBAS, as Syndication Agent,




FORTIS CAPITAL CORP., as Documentation Agent,




BANC OF AMERICA SECURITIES LLC, BNP PARIBAS and FORTIS CAPITAL CORP.,

as Joint Lead Arrangers and Joint Bookrunners,




and CERTAIN FINANCIAL INSTITUTIONS, as Lenders




 






$525,000,000 Senior Secured

364-Day Hedged Inventory Facility




November 6, 2008




 

 



 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	 	Page	 
	ARTICLE I — Definitions and References
	 	 	1	 
	Section 1.1. Defined Terms
	 	 	1	 
	Section 1.2. Exhibits and Schedules; Additional Definitions
	 	 	19	 
	Section 1.3. Amendment of Defined Instruments
	 	 	19	 
	Section 1.4. References and Titles
	 	 	19	 
	Section 1.5. Calculations and Determinations
	 	 	19	 
	Section 1.6. Letter of Credit Amounts
	 	 	19	 
	 
	 	 	 	 
	ARTICLE II — The Loans and Letters of Credit
	 	 	20	 
	Section 2.1. Loans and Letters of Credit
	 	 	20	 
	Section 2.2. Commitments to Lend; Notes
	 	 	20	 
	Section 2.3. Requests for Loans
	 	 	21	 
	Section 2.4. Continuations and Conversions of Existing Loans
	 	 	22	 
	Section 2.5. Use of Proceeds
	 	 	23	 
	Section 2.6. Interest Rates and Fees
	 	 	24	 
	Section 2.7. Optional Prepayments
	 	 	25	 
	Section 2.8. Mandatory Prepayments and Payments
	 	 	25	 
	Section 2.9. Reserved
	 	 	26	 
	Section 2.10. Letters of Credit
	 	 	26	 
	 
	 	 	 	 
	ARTICLE III — Payments to Lenders
	 	 	34	 
	Section 3.1. Payments Generally; Administrative Agent’s Clawback
	 	 	34	 
	Section 3.2. Capital Reimbursement
	 	 	36	 
	Section 3.3. Increased Cost of Eurodollar Loans or Letters of Credit
	 	 	36	 
	Section 3.4. Notice; Change of Applicable Lending Office
	 	 	37	 
	Section 3.5. Illegality
	 	 	38	 
	Section 3.6. Inability to Determine Rates; Market Disruption
	 	 	38	 
	Section 3.7. Funding Losses
	 	 	39	 
	Section 3.8. Reimbursable Taxes
	 	 	39	 
	Section 3.9. Replacement of Lenders
	 	 	40	 
	 
	 	 	 	 
	ARTICLE IV — Conditions Precedent to Lending
	 	 	41	 
	Section 4.1. Documents to be Delivered
	 	 	41	 
	Section 4.2. Additional Conditions Precedent
	 	 	43	 
	 
	 	 	 	 
	ARTICLE V — Representations and Warranties
	 	 	43	 
	Section 5.1. No Default
	 	 	43	 
	Section 5.2. Organization and Good Standing
	 	 	43	 
	Section 5.3. Authorization
	 	 	43	 
	Section 5.4. No Conflicts or Consents
	 	 	44	 
	Section 5.5. Enforceable Obligations
	 	 	44	 
	Section 5.6. Initial Financial Statements
	 	 	44	 
	Section 5.7. Other Obligations and Restrictions
	 	 	44	 
	Section 5.8. Full Disclosure
	 	 	44	 






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	 	 	 	Page	 
	Section 5.9. Litigation
	 	 	45	 
	Section 5.10. ERISA Plans and Liabilities
	 	 	45	 
	Section 5.11. Compliance with Permits, Consents and Law
	 	 	45	 
	Section 5.12. Environmental Laws
	 	 	46	 
	Section 5.13. Accounts; Title to Properties
	 	 	46	 
	Section 5.14. Government Regulation
	 	 	46	 
	Section 5.15. Insider
	 	 	46	 
	Section 5.16. Solvency
	 	 	46	 
	 
	 	 	 	 
	ARTICLE VI — Affirmative Covenants
	 	 	47	 
	Section 6.1. Payment and Performance
	 	 	47	 
	Section 6.2. Books, Financial Statements and Reports
	 	 	47	 
	Section 6.3. Other Information and Inspections
	 	 	48	 
	Section 6.4. Notice of Material Events
	 	 	49	 
	Section 6.5. Maintenance of Existence, Qualifications and Assets
	 	 	50	 
	Section 6.6. Payment of Taxes, etc.
	 	 	50	 
	Section 6.7. Insurance
	 	 	50	 
	Section 6.8. Compliance with Agreements and Law
	 	 	51	 
	Section 6.9. Agreement to Deliver Security Documents
	 	 	51	 
	Section 6.10. Perfection and Protection of Security Interests and Liens
	 	 	       51	 
	 
	 	 	 	 
	ARTICLE VII — Negative Covenants
	 	 	51	 
	Section 7.1. Limitation on Liens
	 	 	51	 
	Section 7.2. Limitation on Mergers
	 	 	52	 
	Section 7.3. Limitation on Sales of Collateral
	 	 	52	 
	Section 7.4. Limitation on New Businesses
	 	 	52	 
	Section 7.5. No Negative Pledges
	 	 	52	 
	Section 7.6. PAA Debt Coverage Ratio
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VIII — Events of Default and Remedies
	 	 	53	 
	Section 8.1. Events of Default
	 	 	53	 
	Section 8.2. Remedies
	 	 	55	 
	Section 8.3. Application of Proceeds of Sale of Collateral
	 	 	55	 
	 
	 	 	 	 
	ARTICLE IX — Administrative Agent
	 	 	56	 
	Section 9.1. Appointment and Authority
	 	 	56	 
	Section 9.2. Rights as a Lender
	 	 	56	 
	Section 9.3. Exculpatory Provisions
	 	 	56	 
	Section 9.4. Reliance by Administrative Agent
	 	 	57	 
	Section 9.5. Delegation of Duties
	 	 	57	 
	Section 9.6. Resignation of Administrative Agent
	 	 	57	 
	Section 9.7. Non-Reliance on Administrative Agent and Other Lenders
	 	 	58	 
	Section 9.8. No Other Duties, Etc.
	 	 	59	 
	Section 9.9. Indemnification
	 	 	59	 
	Section 9.10. Sharing of Set-Offs and Other Payments
	 	 	59	 
	Section 9.11. Investments
	 	 	60	 
	 
	 	 	 	 
	ARTICLE X — Miscellaneous
	 	 	60	 






ii









 






	 	 	 	 	 
	 	 	 	Page	 
	Section 10.1. Waivers and Amendments; Acknowledgments
	 	 	60	 
	Section 10.2. Survival of Representations, Warranties and Agreements;
Cumulative Nature
	 	 	62	 
	Section 10.3. Notices; Effectiveness; Electronic Communications
	 	 	62	 
	Section 10.4. Expenses; Indemnity; Damage Waiver
	 	 	64	 
	Section 10.5. Successors and Assigns
	 	 	66	 
	Section 10.6. Treatment of Certain Information; Confidentiality
	 	 	69	 
	Section 10.7. Governing Law; Submission to Process
	 	 	70	 
	Section 10.8. Limitation on Interest
	 	 	71	 
	Section 10.9. Right of Offset
	 	 	72	 
	Section 10.10. Termination; Limited Survival; Payments Set Aside
	 	 	72	 
	Section 10.11. Severability
	 	 	72	 
	Section 10.12. Counterparts
	 	 	73	 
	Section 10.13. Waiver of Jury Trial
	 	 	73	 
	Section 10.14. USA PATRIOT Act Notice
	 	 	73	 
	Section 10.15. Restated Credit Facility
	 	 	73	 






Schedules and Exhibits:




Schedule I – Commitment Fees and Applicable Margin

Schedule II – Commitments and Percentage Shares

Schedule III — Disclosure Schedule

Schedule IV — Security Schedule

Schedule V — Currently Approved Persons and Facilities

Schedule 10.3 — Addresses for Notices




Exhibit A — Note

Exhibit B — Borrowing Notice

Exhibit C — Continuation/Conversion Notice

Exhibit D-1 — Opinion of In-House Counsel for Borrower and PAA

Exhibit D-2 — Opinion of Fulbright & Jaworski L.L.P., Counsel for Borrower and PAA

Exhibit E — Form of Letter of Credit

Exhibit F-1 — Assignment and Assumption

Exhibit F-2 — Administrative Questionnaire

Exhibit G – Summary Collateral Report





iii









 








SECOND RESTATED CREDIT AGREEMENT




     THIS SECOND RESTATED CREDIT AGREEMENT is made as of November 6, 2008, by and among PLAINS
MARKETING, L.P., a Texas limited partnership (“Borrower”), BANK OF AMERICA, N.A., as
administrative agent (in such capacity, “Administrative Agent”), BNP PARIBAS, as
Syndication Agent (in such capacity, “Syndication Agent”), FORTIS CAPITAL CORP., as
Documentation Agent (in such capacity, “Documentation Agent”), BANC OF AMERICA SECURITIES
LLC, BNP PARIBAS and FORTIS CAPITAL CORP., as joint lead arrangers and joint bookrunners (in such
capacity, “Lead Arrangers and Bookrunners”) 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




     Borrower, Administrative Agent and certain Lenders entered into that certain Restated Credit
Agreement dated November 19, 2004 (as amended prior to the effective date of this Agreement, the
“Existing Agreement”) and, together with the other Lenders a party hereto, desire to amend
and restate the Existing Agreement as set forth herein.



     In consideration of the mutual covenants and agreements contained herein and in consideration
of the loans which may hereafter be made by Lenders and the Letters of Credit which may be made
available by LC Issuer 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:



     “Account” shall have the meaning given that term in the UCC.



     “Account Debtor” means any Person who is or who may become obligated under, with
respect to, or on account of, an Account.



     “Administrative Agent” means Bank of America, N.A., as Administrative Agent hereunder,
and its successors in such capacity.



     “Administrative Agent’s Office” means Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 10.3, or such other address or account as
Administrative Agent may from time to time notify to Borrower and Lenders.



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit F-2 or any other form approved by the Administrative Agent.



     “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




1











 




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 Second Restated Credit Agreement.



     “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 such Lender’s Administrative Questionnaire 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. As used in this definition, “>” 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
	 	BB+
	 	Ba1
	Level V
	 	< BB+
	 	< Ba1






     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.



     “Approved Eligible Receivables” means an Eligible Receivable (a) from a Person whose
Debt Rating is either at least Baa3 by Moody’s or at least BBB- by S&P; (b) fully and



2









 




unconditionally guaranteed as to payment by a Person whose Debt Rating is either at least Baa3 by
Moody’s or at least BBB- by S&P; (c) from any other Person Currently Approved by Majority Lenders;
or (d) fully covered by a letter of credit from any national or state bank or trust company which
is organized under the laws of the United States of America or any state thereof or any branch
licensed to operate under the laws of the United States of America or any state thereof, which is a
branch of a bank organized under any country which is a member of the Organization for Economic
Cooperation and Development, in each case which has capital, surplus and undivided profits of at
least $500,000,000 and whose commercial paper is rated at least P-1 by Moody’s or A-1 by S&P.




     “Approved Fund” means any Fund that is solely administered or managed by (a) a Lender,
(b) an Affiliate of a Lender, or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.



     “Approved Location” means (i) a Plains Terminal, (ii) storage locations or pipelines
Currently Approved by Majority Lenders for which Administrative Agent has received a bailee letter
in form and substance reasonably acceptable to Administrative Agent with respect to any Collateral
stored at such locations or pipelines, or (iii) storage locations or pipelines Currently Approved
by Majority Lenders storing Financed Hedged Eligible Inventory not in excess of five percent (5%)
of all Financed Hedged Eligible Inventory.



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee, and accepted by Administrative Agent, in substantially the form of
Exhibit F-1.



     “Base Rate” means, for any day, a rate per annum equal to the sum of (a) the highest
of (i) the Prime Rate for such day, (ii) the sum of 0.50% plus the Federal Funds Rate for such day
and (iii) except during a Eurodollar Unavailability Period, the sum of 1.00% plus the Eurodollar
Rate for such day, plus (b) the Market Disruption Spread, if any. “Prime Rate” means the
rate of interest in effect for such day as publicly announced from time to time by Reference Bank
as its “prime rate.” The “prime rate” is a rate set by Reference Bank based upon various factors
including Reference Bank’s costs and desired return, general economic conditions and other factors,
and is used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Reference Bank shall take effect at the
opening of business on the day specified in the public announcement of such change.



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



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



     “Borrowing” means a borrowing of new Loans of a single Type pursuant to Section 2.3 or
a Continuation or Conversion of existing Loans into a single Type (and, in the case of Eurodollar
Loans, with the same Interest Period) pursuant to Section 2.4.



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



3









 





     “Broker Liens” means any Liens under or with respect to accounts with brokers or
counterparties with respect to Hedging Contracts in favor of such brokers or counterparties,
securing only obligations under such Hedging Contracts.



     “Business Day” means any day, other than a Saturday, Sunday or day which shall be in
New York, New York a legal holiday or day on which banking institutions are required or authorized
to close. Any Business Day in any way relating to Eurodollar 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.



     “Cash and Carry Purchases” means purchases of Petroleum Products for physical storage
at an Approved Location which qualify as Hedged Eligible Inventory.



     “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 $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.



     “Cash Collateralize” has the meaning specified in Section 2.10(g).



     “Change of Control” means PAA 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 partnership interests (including all securities which are
convertible into partnership interests) of Borrower.



     “Closing Date” means the first date all the conditions precedent in Sections 4.1 and
4.2 are satisfied or waived in accordance with Section 10.1.



4









 





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



     “Collateral” means all property of any kind which is subject to a Lien in favor of
Lenders (or in favor of Administrative Agent for the benefit of Lenders) or which, under the terms
of any Security Document, is purported to be subject to such a Lien, in each case granted or
created to secure all or part of the Obligations.



     “Commitment” means, as to each Lender, its obligations to (a) make Loans to Borrower
pursuant to Section 2.2, and (b) purchase participations in LC Obligations pursuant to Section
2.10(c), in an aggregate principal amount at any one time outstanding not to exceed the amount set
forth opposite such Lender’s name on Schedule II, or in the Assignment and Assumption pursuant to
which such Lender is or becomes a party hereto, as applicable, as such amount may be increased from
time to time pursuant to Section 2.2(b) or reduced from time to time pursuant to Section 2.6(c).



     “Commitment Fee Rate” means the percent per annum set forth on the Pricing Grid as the
“Commitment Fee”, based on the Applicable Rating Level in effect on such date. Changes in the
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 and the obligation of LC Issuer to issue Letters of Credit at the
request of Borrower pursuant to Section 2.10 have 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.



     “Continue”, “Continuation” and “Continued” shall refer to the
continuation pursuant to Section 2.4 of a Eurodollar Loan as a Eurodollar 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 2.4.



     “Convert”, “Conversion” and “Converted” refers to a conversion
pursuant to Section 2.4 of one Type of Loan into another Type of Loan.



     “Currently Approved by Majority Lenders” means such Person (including a limit on the
maximum Hedged Eligible Inventory sold to any such Person), storage location, pipeline, form
of Letter of Credit or other matter as the case may be, as reflected in Schedule V attached
hereto and as amended from time to time by the most recent written notice given by Administrative



5









 




Agent to Borrower as being approved by Majority Lenders. Each such amended Schedule V will
supersede and revoke each prior Schedule V.




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




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


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.



     “Defaulting Lender” means any Lender Party that (a) has failed to fund any portion of
the Loans or participations in LC Obligations required to be funded by it hereunder or failed to
issue any Letter of Credit required to be issued by it hereunder, in either case within one
Business Day of the date required for such funding or issuance by it hereunder, unless cured, (b)
has otherwise failed to pay over to Administrative Agent or any other Lender any other amount
required to be paid by it hereunder within one Business Day of the date when due, unless cured or
the subject of a good faith dispute, (c) has otherwise materially breached any of its obligations
hereunder or under any other Loan Document, unless cured, (d) has been deemed insolvent or become
the subject of a bankruptcy or insolvency proceeding, or (e) is an Impacted Lender that has failed
to enter into an arrangement with LC Issuer with respect to LC Issuer’s related risk with respect
to such Impacted Lender as contemplated in Section 2.10(a)(iii)(E), and as a result of such
failure, as of the date of a request by Borrower for a Letter of Credit, Borrower has entered into
such an arrangement with LC Issuer.



     “Disclosure Schedule” means Schedule III hereto.



     “Documentation Agent” means Fortis Capital Corp., and its successors in such capacity.



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



     “Eligible Assignee” means (a) a Lender, and (b) any other Person (other than a natural
person), including Affiliates of Lenders and Approved Funds, approved by (i) Administrative
Agent and LC Issuers, and (ii) unless an Event of Default is continuing, Borrower (each such
approval not to be unreasonably withheld or delayed); provided, that notwithstanding the



6









 




foregoing,
“Eligible Assignee” shall not include Borrower or any of Borrower’s Affiliates or Subsidiaries or,
unless an Event of Default is continuing, any Person who, at the relevant time of determination, is
a Defaulting Lender or an Affiliate of a Defaulting Lender; provided further, an Eligible Assignee
of any Lender shall include only those Persons which, through their respective Lending Offices, are
capable of lending to Borrower without the imposition of any withholding taxes on interest or
principal owed to such Persons, and Loans by such Eligible Assignee shall be made through such
Lending Office.




     “Eligible Inventory” means inventories of Petroleum Products in which Borrower has
lawful and absolute title (specifically excluding, however, tank bottoms and pipeline linefill of
Borrower classified as a long-term asset), which are not subject to any Lien in favor of any Person
(other than Permitted Inventory Liens), which are subject to a fully perfected first priority
security interest (subject only to Permitted Inventory Liens) in favor of Administrative Agent
pursuant to the Loan Documents prior to the rights of, and enforceable as such against, any other
Person, which are otherwise satisfactory to Majority Lenders in their reasonable business judgment
and located at Approved Locations, minus without duplication the amount of any Permitted Inventory
Lien on any such inventory.



     “Eligible Receivables” means, at the time of any determination thereof (and without
duplication), each Account and, with respect to each determination made on or after the 20th day of
each calendar month and prior to the first day of the next calendar month, each amount which will
be, in the good faith estimate reasonably determined by Borrower, an Account of the Borrower with
respect to sales and deliveries of Hedged Eligible Inventory during such calendar month or
deliveries of Hedged Eligible Inventory during the next calendar month under firm written purchase
and sale agreements, in either event as to which the following requirements have been fulfilled (or
as to future Accounts, will be fulfilled as of the date of such sales and deliveries of Hedged
Eligible Inventory), to the reasonable satisfaction of Administrative Agent:




     (i) Borrower has lawful and absolute title to such Account;




     (ii) such Account is a valid, legally enforceable obligation of an Account Debtor
payable in Dollars, arising from the sale and delivery of Hedged Eligible Inventory to such
Person in the United States of America in the ordinary course of business of Borrower, to
the extent of the volumes of Hedged Eligible Inventory delivered to such Person prior to the
date of determination;




     (iii) there has been excluded from such Account (A) any portion that is subject to any
dispute, rejection, loss, non-conformance, counterclaim or other claim or defense on the
part of any Account Debtor or to any claim on the part of any Account Debtor denying
liability under such Account, and (B) the amount of any account payable or other liability
owed by Borrower to the Account Debtor on such Account, whether or not a specific netting
agreement may exist, excluding, however, any portion of any such account payable or other
liability which is at the time in question covered by a Letter of Credit;




     (iv) Borrower has the full and unqualified right to assign and grant a security
interest in such Account to Administrative Agent as security for the Obligation;



7









 






     (v) such Account (A) is evidenced by an invoice rendered to the Account Debtor, or (B)
represents the uninvoiced amount in respect of volumes of Hedged Eligible Inventory
scheduled to be delivered by Borrower in the current or next-following calendar month, is
governed by a purchase and sale agreement, exchange agreement or other written agreement,
and in either event such Account is not evidenced by any promissory note or other
instrument;




     (vi) such Account is not subject to any Lien in favor of any Person and is subject to a
fully perfected first priority security interest in favor of Administrative Agent pursuant
to the Loan Documents, prior to the rights of, and enforceable as such against, any other
Person except for a Lien in respect of First Purchase Crude Payables;




     (vii) such Account is due not more than 30 days following the last day of the calendar
month in which the Hedged Eligible Inventory delivery occurred and is not more than 30 days
past due;




     (viii) such Account is not payable by an Account Debtor with more than twenty percent
(20%) of its Accounts to Borrower that are outstanding more than 60 days from the invoice
date;




     (ix) the Account Debtor in respect of such Account (A) is located, is conducting
significant business or has significant assets in the United States of America or is a
Person Currently Approved by Majority Lenders, (B) is not an Affiliate of Borrower, and
(C) is not the subject of any event of the type described in Section 8.1(i); and




     (x) the Account Debtor in respect of such Account is not a governmental authority,
domestic or foreign.



     “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 Borrower and all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control that, together with
Borrower, 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 Borrower has a fixed or contingent
liability.



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



8









 





     “Eurodollar Rate” means:



     (a) For any Interest Period with respect to a Eurodollar Loan, the sum of (i) the rate per
annum equal to (A) the British Bankers Association LIBOR Rate as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated by the Administrative
Agent from time to time) (“BBA LIBOR”), at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to such Interest Period or (B) if
such published rate is not available at such time for any reason, the rate determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being made,
continued or converted by Reference Bank and with a term equivalent to such Interest Period would
be offered by Reference Bank’s London Branch to major banks in the London interbank eurodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the
commencement of such Interest Period and (ii) the Market Disruption Spread, if any, as of the time
of determination.



     (b) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum
equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time on the date of determination
(provided that if such day is not a London Business Day, the next preceding London Business Day)
for Dollar deposits being delivered in the London interbank market for a term of one month
commencing that day or (ii) if such published rate is not available at such time for any reason,
the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for
delivery on the date of determination in same day funds in the approximate amount of the Base Rate
Loan being made by Reference Bank and with a term equal to one month would be offered by Reference
Bank’s London Branch to major banks in the London interbank eurodollar market at their request at
the date and time of determination.



     “Eurodollar Unavailability Period” means any period of time during which a notice
delivered to Borrower in accordance with Section 3.6(a) shall remain in force and effect.



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



     “Existing Agreement” has the meaning given to such term in the recitals hereof.



     “Federal Funds Rate” means, for any day, the rate per annum 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 (a) if such day 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 (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Reference Bank on such day on such transactions as determined by Administrative Agent.



     “Financed Hedged Eligible Inventory” means all Hedged Eligible Inventory (i) the Cash
and Carry Purchase of which is to be or has been secured by Letters of Credit issued hereunder,



9









 







and/or (ii) the purchase of which pursuant to Cash and Carry Purchases, or the storage thereof at
Approved Locations, has been financed pursuant to Loans hereunder.



     “First Purchase Crude Payables” means the unpaid amount of any payable obligation
related to the purchase of Petroleum Products by Borrower secured by a valid statutory Lien,
including but not limited to valid statutory Liens, if any, created under the laws of Texas, New
Mexico, Wyoming, Kansas, Oklahoma or any other state to the extent such payable obligation is not
at the time in question covered by a Letter of Credit.



     “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.



     “Fund” means any Person (other than a natural person) that is engaged in making,
purchasing or holding commercial loans and similar extensions of credit in the ordinary course of
its business.



     “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.



     “GP Inc.” means Plains Marketing GP Inc., a Delaware corporation, the sole general
partner of Borrower.



     “Governmental Authority” means the government of the United States or any other
nation, or of any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity thereof authorized by
applicable Law to exercise executive, legislative, judicial, taxing, regulatory or administrative
powers or functions of or pertaining to such government (including any supra-national bodies such
as the European Union or the European Central Bank).



     “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.



     “Hedged Eligible Inventory” means Petroleum Products purchased or stored, or scheduled
to be purchased or stored, by Borrower, specified by Borrower as Hedged Eligible Inventory in the
corresponding Borrowing Notice, which have been hedged by either (i) a



10









 







NYMEX contract or an
Intercontinental Exchange contract, which hedging contract is pursuant to a segregated account
subject to a security agreement and assignment of hedging account and agency agreement with and
satisfactory to Administrative Agent and not subject to any setoff, counterclaim or netting, or
(ii) an over-the-counter contract or contract for physical delivery to an investment-grade
counterparty or other counterparty Currently Approved by Majority Lenders, and which Petroleum
Products, in either such case, upon such purchase or storage by Borrower, shall qualify as Eligible
Inventory, in each case which constitutes a Hedging Contract.



     “Hedged Value” means, as to Hedged Eligible Inventory and such corresponding Hedging
Contracts with respect thereto, an amount equal to the volume of such Hedged Eligible Inventory
times the prices fixed in such corresponding Hedging Contract, minus (i) all
related storage, transportation and other applicable costs of such Hedged Eligible Inventory, as
set forth therein and (ii) the amount secured by any Broker Liens, other than Broker Liens on
margin deposits with respect to such corresponding Hedging Contracts.



     “Hedging Contract” means (a) any agreement providing for options, swaps, floors, caps,
collars, forward sales or forward purchases involving interest rates, commodities or commodity
prices, equities, currencies, bonds, or indexes based on any of the foregoing, (b) any option,
futures or forward contract traded on an exchange, and (c) any other derivative agreement or other
similar agreement or arrangement.



     “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.



     “Impacted Lender” has the meaning given to such term in Section 2.10(a)(iii)(E).



     “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,



11









 





     (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 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 PAA as of December 31, 2007, and (ii) the unaudited Consolidated financial statements of PAA as
of June 30, 2008.



     “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, 2008, and (b) with respect to each
Eurodollar Loan, the last day of the Interest Period that is applicable thereto; 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 Eurodollar 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 month thereafter (or
7 or 14 days thereafter, if specified by Borrower and available for each Lender); 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.



     “ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice (or such later
version thereof as may be in effect at the time of issuance).



     “Issuer Documents” means with respect to any Letter of Credit, the LC Application, and
any other document, agreement and instrument entered into by an LC Issuer and Borrower (or
any Subsidiary) or by Borrower or any Subsidiary in favor of such LC Issuer and relating to
any such Letter of Credit.



12









 





     “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.



     “LC Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any LC Borrowing in accordance with its Percentage Share. All LC Advances shall
be denominated in Dollars.



     “LC Application” means an application and agreement for the issuance or amendment of a
Letter of Credit in the form from time to time in use by an LC Issuer, which includes any
electronic online letter of credit application/request system of any LC Issuer.



     “LC-Backed Purchase Contracts” has the meaning given to such term in Section 2.1(a).



     “LC Borrowing” means an extension of credit from an LC Issuer resulting from a drawing
under any Letter of Credit which has not been reimbursed by Borrower on the date when made or
refinanced as a Borrowing. All LC Borrowings shall be denominated in Dollars.



     “LC Credit Extension” means, with respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount thereof.



     “LC Issuer” means Bank of America, N.A., in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity. Administrative Agent may, with the consent
of Borrower and the Lender in question, or Borrower may, with the consent of the Lender in question
and notice to Administrative Agent, appoint any Lender hereunder as an LC Issuer in place of or in
addition to Bank of America, N.A.



     “LC Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate outstanding amount
of all Unreimbursed Amounts with respect to Letters of Credit that are not fully refinanced by a
Borrowing and, without duplication, all LC Borrowings. For all purposes of this Agreement, if on
any date of determination a Letter of Credit has expired by its terms but any amount may still be
drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



     “Lender Parties” means Administrative Agent, LC Issuer 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 II hereto.



     “Letter of Credit” means any letter of credit issued by LC Issuer hereunder at the
application of Borrower pursuant to Section 2.10. For avoidance of doubt, Letter of Credit includes
a commercial or documentary letter of credit and a standby letter of credit.



     “Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business
Day).



13









 





     “Letter of Credit Sublimit” means, as at any date of determination, an amount equal to
twenty percent (20%) of the Total Committed Amount. The Letter of Credit Sublimit is part of, and
not in addition to, the Total Committed Amount.



     “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.



     “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, the Letters of Credit, the LC
Applications, the written Borrowing Notices, the Summary Collateral Reports, the PAA Guaranty 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 2.2.



     “Majority Lenders” means Lenders who have in the aggregate more than fifty percent
(50%) of the Total Committed Amount; provided that the Commitment of, and the portion of
the Total Committed Amount held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Majority Lenders.



     “Market Disruption Spread” means zero unless a notice delivered pursuant to Section
3.6(b) is in effect, in which case, such spread shall be a rate per annum equal to 0.25%.



     “Material Adverse Change” means (a) a material and adverse change in (i) Borrower’s
Consolidated financial condition, (ii) Borrower’s Consolidated operations, properties or prospects,
considered as a whole, or (iii) Borrower’s ability to timely pay its Obligations, or (b) a material
adverse effect on the enforceability of the material terms of any Loan Document.



     “Maturity Date” means 364 days from the Closing Date, unless terminated earlier in
accordance with Section 8.1 or Section 10.10.



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



14









 





     “Notes” has the meaning given such term in Section 2.2 hereof.



     “NYMEX” means the New York Mercantile Exchange.



     “Obligations” means all Liabilities from time to time owing by Borrower to any Lender
Party under or pursuant to any of the Notes and Letters of Credit, including all LC Obligations
owing thereunder, or under or pursuant to any guaranty of the obligations of Borrower or under the
Loan Documents. “Obligation” means any part of the Obligations.



     “Outstanding Amount” means on any date (i) with respect to Loans, the aggregate
outstanding principal amount thereof after giving effect to any borrowings and prepayments or
repayments of such Loans occurring on such date; and (ii) with respect to any LC Obligations, the
aggregate outstanding amount of such LC Obligations on such date after giving effect to any LC
Credit Extension occurring on such date and any other changes in the aggregate amount of the LC
Obligations as of such date, including as a result of any reimbursements by Borrower of
Unreimbursed Amounts.



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



     “PAA Credit Agreement” means that certain Second Amended and Restated Credit Agreement
[US/Canada Facilities] dated July 31, 2006 among PAA, PMC (Nova Scotia) Company, Plains Marketing
Canada, L.P., Bank of America, N.A., as administrative agent, Bank of America, N.A., acting through
its Canada Branch, as Canadian administrative agent, and the lenders named therein, as amended by
First Amendment to Second Amended and Restated Credit Agreement dated July 31, 2007, as from time
to time amended, supplemented or restated.



     “PAA Debt Coverage Ratio” means the “Debt Coverage Ratio” as defined in the PAA Credit
Agreement.



     “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 PAA.



     “PAA Guaranty” means that certain Restated Guaranty Agreement of even date herewith by
PAA in favor of Administrative Agent for the benefit of Lenders.



     “Participant” has the meaning specified in Section 10.5(d).



     “Percentage Share” means:



     (a) at any relevant time of determination during which the Commitments remain outstanding, a
fraction (expressed as a percentage, carried out to the sixth decimal place), the numerator
of which is the amount of the Commitment of such Lender at such time and the denominator of
which is the amount of the Total Committed Amount at such time; and



     (b) at any relevant time of determination on or subsequent to the termination of the
Commitments pursuant to Section 8.1, a fraction (expressed as a percentage, carried out to the
sixth decimal place),



15









 







the numerator of which is the sum of




     (i) the Outstanding Amount of Loans of such Lender plus




     (ii) an amount equal to (A) (1) the Outstanding Amount of Loans of such Lender,
divided by (2) the Outstanding Amount of all Loans of all Lenders, times (B)
the Outstanding Amount of all LC Obligations, and



     the denominator of which is the Total Outstanding Amount.



     The initial Percentage Share of each Lender is set forth opposite the name of such Lender on
Schedule II or in the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.



     “Permitted Inventory Liens” means (i) any Lien, and the amount of any Liability
secured thereby, on Petroleum Products inventory 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
Borrower in accordance with GAAP (so long as such Lien is inchoate) or (ii) carriers’,
warehousemen’s, mechanics’, materialmen’s, repairmen’s, landlord’s, or other like Liens (including,
without limitation, Liens on property of Borrower 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 by appropriate
proceedings, if necessary, and for which adequate reserves are maintained on the books of Borrower
in accordance with GAAP.



     “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, Governmental Authority, 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 Terminal” means any storage terminal, tankage or facility owned by (i)
Borrower or PAA, or (ii) by any Affiliate of Borrower or PAA that has executed and delivered a
bailee letter in form and substance reasonably acceptable to Administrative Agent with respect to
any Collateral stored at such terminal, tankage or facility.



     “Pricing Grid” means Schedule I attached hereto.



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



     “Reference Bank” means, at any time, the financial institution serving as
Administrative Agent.



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




16











 





     “Related Parties” means, with respect to any Person, such Person’s Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Person’s
Affiliates.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or assistant treasurer of Borrower or Borrower’s general partner. Any document
delivered hereunder that is signed by a Responsible Officer of Borrower shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or other action on the
part of Borrower, and such Responsible Officer shall be conclusively presumed to have acted on
behalf of Borrower.



     “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 Borrower 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 Borrower, or the property, assets or operations of
Borrower, 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, (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, (iii) (a) a lease, license or similar
contract, which restricts in a customary manner the subletting, assignment, encumbrance or transfer
of any property or asset that is subject thereto or the assignment, encumbrance or transfer of any
such lease, license or other contract, (b) mortgages, deeds of trust, pledges or other security
instruments, the entry into which does not result in a Default, securing indebtedness of Borrower,
which restricts the transfer of the property subject to such mortgages, deeds of trust, pledges or
other security instruments, or (c) customary provisions restricting disposition of, or encumbrances
on, real property interests set forth in any reciprocal easements of Borrower, (iv) restrictions
imposed pursuant to this Agreement and the other Loan Documents, (v) restrictions on the transfer
or encumbrance of property or assets which are imposed by the holder of Liens on property or assets
of Borrower, provided that neither the incurrence of such Lien nor any related
Indebtedness results in a Default, (vi) any agreement to, directly or indirectly, sell or otherwise
dispose of assets or equity interests to any Person pending the closing of such sale,
provided that such sale is consummated in compliance with any applicable provisions
of this Agreement, (vii) net worth provisions in leases and other agreements entered into by
Borrower in the ordinary course of business, and (viii) an agreement governing Indebtedness
incurred to refinance the Indebtedness issued, assumed or incurred pursuant to an agreement
referred to in clauses (iv) and (v) above; provided, however, that the provisions
relating to such encumbrance or restriction contained in any such Indebtedness are no less
favorable to Borrower in any material respect as determined by its board of directors in its
reasonable and good faith judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clauses (iv) and (v).



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



17









 





     “Sale Value” means, as to Hedged Eligible Inventory subject to sales contracts and
such corresponding sales contracts with respect thereto, an amount equal to the volumes of such
Hedged Eligible Inventory times the sale price with respect to which Lenders are financing
the Cash and Carry Purchase (or refinancing the storage) thereof, minus all related storage,
transportation and other applicable costs, as set forth therein.



     “Security Documents” means the instruments listed in the Security Schedule and all
other security agreements, chattel mortgages, pledges, financing statements, continuation
statements, extension agreements and other agreements or instruments now, heretofore, or hereafter
delivered by Borrower to Administrative Agent in connection with this Agreement or any transaction
contemplated hereby to secure or guarantee the payment of any part of the Obligations or the
performance of Borrower’s other duties and obligations under the Loan Documents.



     “Security Schedule” means Schedule IV hereto.



     “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.



     “Summary Collateral Report” means a summary report with respect to the Collateral, as
described in Section 6.2(d).



     “Syndication Agent” means BNP Paribas, and its successors in such capacity.



     “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.



     “Total Committed Amount” means, at any time, the sum of the aggregate amount of
Commitments at such time.



     “Total Outstanding Amount” means, at any time, the sum of (i) the Outstanding Amount
of Loans at such time plus (ii) the Outstanding Amount of LC Obligations.



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



     “UCC” means the Uniform Commercial Code as in effect in the State of New York.



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     “Unreimbursed Amount” has the meaning specified in Section 2.10(c)(i).



     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 Borrower 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 Eurodollar 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 Eurodollar
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.



     Section 1.6. Letter of Credit Amounts. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be
deemed to be the stated amount of such Letter of Credit in effect at such time; provided,
however, that with respect to any Letter of Credit that, by its terms or the terms of any
Issuer Document related thereto, provides for one or more automatic increases in the stated amount
thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of
such Letter of Credit after giving effect to all such increases,



19









 




whether or not such maximum stated
amount is in effect at such time; provided, further, that with respect to any
Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides
for one or more automatic reductions in the stated amount thereof, the amount of such Letter of
Credit shall be deemed to be the amount available to be drawn under such Letter of Credit at such
time.




ARTICLE II  — The Loans and Letters of Credit




     Section 2.1. Loans and Letters of Credit.



     (a) Loans to Finance Hedged Eligible Inventory. During the Commitment Period,
Borrower may request Lenders to make Loans to finance Hedged Eligible Inventory, specifying (i)
volumes of Hedged Eligible Inventory to be subject to Cash and Carry Purchases or to be stored at
or to remain stored at Approved Locations, including hedged price, Hedged Value and Approved
Locations where such Hedged Eligible Inventory is stored or to be delivered and/or stored, (ii) any
corresponding Hedging Contracts (including Master ISDA Agreements, counterparties and confirmations
thereunder) covering such Hedged Eligible Inventory, and (iii) any corresponding sale contracts
(with purchaser, date, volumes, prices and such other identifying information as Administrative
Agent may reasonably request) pursuant to which Borrower has contracted to sell such Hedged
Eligible Inventory, including specifying volumes, sale price and Sale Value.



     (b) Letters of Credit Securing LC-Backed Purchase Contracts. Borrower may request one
or more Letters of Credit pursuant to Section 2.10, naming the sellers of Hedged Eligible Inventory
under such purchase contracts as Borrower may specify (“LC-Backed Purchase Contracts”), as
beneficiaries; provided, Borrower shall specify to Administrative Agent the seller, date,
volumes, prices and such other identifying information as Administrative Agent may reasonably
request with respect to each such LC-Backed Purchase Contract. Each such Letter of Credit shall by
its terms identify the specific LC-Backed Purchase Contracts to which it relates and shall
automatically reduce upon receipt by the beneficiary thereof of any payments made by Borrower to
such beneficiary for such Hedged Eligible Inventory referencing such Letter of Credit.



     Section 2.2. Commitments to Lend; Notes.



     (a) Loans. 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 (i) subject to Sections 3.3, 3.4 and 3.7, 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, (ii) immediately after giving effect to such Loans, the Total Outstanding
Amount does not exceed the lesser of (x) ninety percent (90%) of the Sale Value of Financed Hedged
Eligible Inventory (or Hedged Value, as to Financed Hedged Eligible Inventory not subject to sales
contracts), and (y) the Total Committed Amount determined as of the date on which the requested
Loans are to be made, and (iii) immediately after giving effect to such Loans, the Outstanding
Amount of Loans by each Lender plus such Lender’s Percentage Share of the Outstanding Amount of LC
Obligations 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



20









 




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 made by Borrower on such
Note as provided herein. 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 2.2. Borrower may have no
more than seven Borrowings of Eurodollar Loans outstanding at any time. All payments of principal
and interest on the Loans shall be made in Dollars.




     (b) Increase in Total Committed Amount. Borrower shall have the right, without the
consent of the Lenders but with the prior approval of Administrative Agent, such approval not to be
unreasonably withheld, to cause from time to time an increase in the Total Committed Amount by
adding to this Agreement one or more additional Lenders or by allowing one or more Lenders to
increase their respective Commitments; provided however (i) no Event of Default shall have occurred
hereunder which is continuing or would immediately result therefrom, (ii) no such increase shall
result in the Total Committed Amount to exceed $1,200,000,000, and (iii) no Lender’s Commitment
shall be increased without such Lender’s consent. Upon any increase in the aggregate Total
Committed Amount pursuant to the foregoing, the Lenders hereby authorize the Agent and Borrower to
make non-ratable borrowings and prepayments of the Loans, and if any such prepayment requires the
payment of Eurodollar Loans, Borrower shall pay any required amounts pursuant to Section 3.7 other
than on the last day of the applicable Interest Period, in order to ensure that the Loans of the
Lenders shall be outstanding on a ratable basis in accordance with their Percentage Shares, and the
Commitments shall be as set forth in a revised Schedule II, and no such borrowing or prepayment
shall violate any provisions of this Agreement.



     Section 2.3. Requests for Loans.



     (a) Borrowing Notices. 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:




     (i) 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
Eurodollar Loans, the date on which such Eurodollar 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; and




     (ii) be received by Administrative Agent not later than 11:00 a.m., New York, New York
time, on (A) the day on which any such Base Rate Loans are to be made, or (B) the third
Business Day preceding the day on which any such Eurodollar Loans are to be made.



21









 




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, accompanied by a Summary Collateral Report.
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 remit to Administrative Agent at its designated office
not later than 1:00 p.m., New York, New York time, 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. All Borrowings of Loans
shall be advanced in Dollars.




     (b) Funding by Lenders; Presumption by Administrative Agent. Unless Administrative
Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of
Eurodollar Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon, New
York, New York time, on the date of such Borrowing) that such Lender will not make available to
Administrative Agent such Lender’s Percentage Share of such Borrowing, Administrative Agent may
assume that such Lender has made such share available on such date in accordance with this Section
2.3 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share
available in accordance with and at the time required by this Section 2.3) and may, in reliance
upon such assumption, make available to Borrower a corresponding amount of such Borrowing. In such
event, if a Lender has not in fact made its Percentage Share of the applicable Borrowing available
to Administrative Agent, then such Lender and Borrower severally agree to pay to Administrative
Agent forthwith on demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount is made available to Borrower to but
excluding the date of payment to Administrative Agent, at (A) in the case of a payment to be made
by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent
in accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by Administrative Agent in connection with the
foregoing, and (B) in the case of a payment to be made by Borrower, the interest rate applicable to
Base Rate Loans. If Borrower and such Lender shall pay such interest to Administrative Agent for
the same or an overlapping period, Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by Borrower for such period. If such Lender pays its Percentage Share
of the applicable Borrowing to Administrative Agent and Administrative Agent makes such amount
available to Borrower, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may
have against a Lender that shall have failed to make or timely make such payment to Administrative
Agent. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing
under this subsection (b) shall be conclusive, absent manifest error.



     Section 2.4. 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 Eurodollar Loans, (ii) to Convert, in whole or in part, Eurodollar Loans to Base
Rate Loans on the last day of the Interest Period applicable thereto, and (iii) to Continue, in
whole or in part, Eurodollar 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



22









 




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 Eurodollar Loans
outstanding at any time. To make any such election, Borrower must give to 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 Eurodollar 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 Eurodollar Loans), and the length of the applicable Interest
Period; and




     (iii) be received by Administrative Agent not later than 11:00 a.m. New York, New York
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 Eurodollar 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 Eurodollar Loans or Continue existing Loans as Eurodollar 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 Eurodollar Loans at least
three days prior to the end of the Interest Period applicable to
such Eurodollar Loans, any such Eurodollar 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 2.5. Use of Proceeds. Borrower shall use all Loans to refinance outstanding
indebtedness under the Existing Agreement, to finance Hedged Eligible Inventory and to refinance
Unreimbursed Amounts. Any Loans used to purchase Hedged Eligible Inventory under LC-Backed
Purchase Contracts shall be used by Borrower on the date of such Loan to pay



23









 




the sellers
thereunder, with reference in each case to the outstanding Letter of Credit issued with respect to
such LC-Backed Purchase Contract, and Borrower shall provide documentation to Administrative Agent
with respect thereto. Borrower shall use all Letters of Credit solely for the purposes set forth in
Section 2.10(d). In no event shall the funds from any Loans or any Letters of Credit 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 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 2.6. 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 Eurodollar Loan shall bear interest on each day during the
related Interest Period at the related Eurodollar 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, Eurodollar Rate or
Applicable Margin changes. In no event shall the interest rate on any Loan exceed the Highest
Lawful Rate.




     (b) Upfront Fee. In consideration of each Lender’s Commitment, Borrower will pay to
Administrative Agent for the account of each Lender in proportion to its Percentage Share, an
upfront fee as agreed to between Borrower, Administrative Agent and Lenders, due and payable on the
date hereof.



     (c) Commitment Fee, Reductions of Commitments. The Borrower shall pay to the
Administrative Agent for the account of each Lender in accordance with its Percentage Share, a
commitment fee equal to the Commitment Fee Rate times the actual daily amount by which the
Total Committed Amount exceeds the sum of (i) the Outstanding Amount of Loans and (ii) the
Outstanding Amount of LC Obligations; provided, such commitment fee shall cease to accrue
or be deemed to have accrued, or be owing or payable by Borrower to Administrative Agent for the
account of any Lender with respect to such Lender’s Percentage Share during any period that such
Lender constitutes a Defaulting Lender as described in clauses (a), (d) or (e) of the definition
thereof. Subject to the proviso set forth in the immediately preceding sentence, the commitment
fee shall accrue at all times during the Commitment Period, including at any time



24









 




during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly
in arrears on the last day of each March, June, September and December, commencing with the first
such date to occur after the Closing Date, and on the last day of the Commitment Period. The
commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Commitment Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by
the applicable Commitment Fee Rate separately for each period during such quarter that such
applicable Commitment Fee Rate was in effect. Borrower shall have the right from time to time to
permanently reduce the Total Committed Amount, provided that (A) notice of such reduction is given
not less than two Business Days prior to such reduction, (B) the resulting Total Committed Amount
is not less than the Total Outstanding Amount, and (C) each partial reduction shall be in an amount
at least equal to $1,000,000 and in multiples of $1,000,000 in excess thereof.




     Section 2.7. Optional Prepayments. Borrower may, upon three Business Days’ notice, as
to Eurodollar 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 (other than any amounts due under Section 3.7 hereof with respect to
prepayments of any Eurodollar Loans) prepay the Loans, in whole or in part, so long as the
aggregate 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 2.8. Mandatory Prepayments and Payments.



     (a) If at any time the Total Outstanding Amount exceeds the lesser of (x) ninety percent (90%)
of the Sale Value of Financed Hedged Eligible Inventory (or Hedged Value, as to Financed Hedged
Eligible Inventory not subject to sales contracts), and (y) the Total Committed Amount determined
as of such date, whether as a result of any investment-grade counterparty with respect to any
Financed Hedged Eligible Inventory ceasing to maintain its investment grade rating, or otherwise,
Borrower shall within one Business Day 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.



     (b) If any contract pursuant to which the Sale Value of any Financed Hedged Eligible Inventory
is modified, sold or exchanged in any way that would negatively affect the Sale Value of such
Financed Hedged Eligible Inventory with respect thereto, Borrower shall immediately (i) notify
Administrative Agent of such decreased Sale Value, and (ii) prepay any outstanding Loans with
respect to such Financed Hedged Eligible Inventory as may be required pursuant to Section 2.8(a)
above.



25









 





     (c) Each Loan by a Lender hereunder shall be due and payable on the Maturity Date, accompanied
by all interest then accrued and unpaid on such Loan.



     Section 2.9. Reserved.



     Section 2.10. Letters of Credit.



     (a) The Letter of Credit Commitment.



          (i) Subject to the terms and conditions set forth herein, (A) LC Issuer agrees, in reliance
upon the agreements of the Lenders set forth in this Section 2.10, (1) from time to time on any
Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit denominated in Dollars for the account of Borrower, and to amend or extend
Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) Lenders severally agree to participate in
Letters of Credit issued for the account of Borrower and any drawings thereunder; provided that
after giving effect to any LC Credit Extension with respect to any Letter of Credit, (I) the Total
Outstanding Amount does not exceed the lesser of (x) ninety percent (90%) of the Sale Value of
Financed Hedged Eligible Inventory (or Hedged Value, as to Financed Hedged Eligible Inventory not
subject to sales contracts), and (y) the Total Committed Amount, (II) the Outstanding Amount of
Loans of any Lender, plus such Lender’s Percentage Share of the Outstanding Amount of all
LC Obligations shall not exceed such Lender’s Commitment and (III) the Outstanding Amount of the LC Obligations shall not exceed the Letter
of Credit Sublimit. Each request by Borrower for the issuance or amendment of a Letter of Credit
shall be deemed to be a representation by Borrower that the LC Credit Extension so requested
complies with the conditions set forth in the provisos to the preceding sentence. Each Letter of
Credit shall be used to secure the Cash and Carry Purchase by Borrower of Hedged Eligible Inventory
pursuant to an LC-Backed Purchase Contract and be substantially in the form of Exhibit E hereto or
such other form and terms as shall be acceptable to LC Issuer in its sole and absolute discretion.
Within the foregoing limits, and subject to the terms and conditions hereof, Borrower’s ability to
obtain Letters of Credit shall be fully revolving, and accordingly Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that
have been drawn upon and reimbursed. All Letters of Credit outstanding under the Existing
Agreement as of the Closing Date shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and conditions hereof.




          (ii) An LC Issuer shall not issue any Letter of Credit, if:




               (A) the expiry date of such requested Letter of Credit would occur more than 70 days after the
date of issuance or last extension, unless the Majority Lenders have approved such expiry date; or



               (B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved such expiry date.



          (iii) An LC Issuer shall not be under any obligation to issue any Letter of Credit if:




26









 








               (A) any order, judgment or decree of any Governmental Authority or arbitrator having
jurisdiction over it shall by its terms purport to enjoin or restrain LC Issuer from issuing such
Letter of Credit, or any Law applicable to LC Issuer or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over LC Issuer shall
prohibit, or request or direct LC Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon LC Issuer with respect to such Letter
of Credit any restriction, reserve or capital requirement (for which LC Issuer is not otherwise
permitted hereunder to be compensated hereunder) not in effect on the Closing Date, or shall impose
upon LC Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date
(for which LC Issuer is otherwise permitted hereunder to be compensated hereunder) and which LC
Issuer in good faith deems material to it;



               (B) except as otherwise agreed by Administrative Agent and LC Issuer, such Letter of Credit is
in an initial stated amount less than $100,000;



               (C) such Letter of Credit is to be denominated in a currency other than Dollars; or



               (D) such Letter of Credit contains any provisions for automatic reinstatement of the stated
amount after any drawing thereunder; or



               (E) a default of any Lender’s obligations to fund under Section 2.10(c) exists or any
Lender is at such time a Defaulting Lender or Impacted Lender hereunder, unless the LC Issuer shall
have entered into arrangements satisfactory to LC Issuer with the Borrower or such Lender to make
available funds, guaranty or other security satisfactory to LC Issuer for so long as such Letter of
Credit is outstanding in an amount sufficient to eliminate the LC Issuer’s risk with respect to
such Lender’s Percentage Share of such Letter of Credit. As used herein, “Impacted Lender”
means any Lender as to which (a) the LC Issuer has a good faith belief that such Lender has
defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (b)
an entity that controls such Lender has been deemed insolvent or become subject to a bankruptcy or
other similar proceeding.



          (iv) An LC Issuer shall not amend any Letter of Credit if LC Issuer would not be permitted at
such time to issue such Letter of Credit in its amended form under the terms hereof.




          (v) An LC Issuer shall be under no obligation to amend any Letter of Credit if (A) LC Issuer
would have no obligation at such time to issue such Letter of Credit in its amended form under the
terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed
amendment to such Letter of Credit.




          (vi) An LC Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith, and an LC Issuer shall have all of the
benefits and immunities (A) provided to the Administrative Agent in Article IX with respect
to any acts taken or omissions suffered by LC Issuer in connection with Letters of Credit issued by
it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as
fully as if the term “Administrative Agent” as used in Article IX included LC Issuer with
respect to such acts or omissions, and (B) as additionally provided herein with respect to LC
Issuer.




27









 








     (b) Procedures for Issuance and Amendment of Letters of Credit.



          (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of
Borrower delivered to LC Issuer (with a copy to Administrative Agent) in the form of a printed LC
Application, appropriately completed and signed by a Responsible Officer of Borrower or an
electronic LC Application initiated by Borrower pursuant to LC Issuer’s online electronic letter of
credit application/request system. Such LC Application must be received by LC Issuer and
Administrative Agent not later than 11:00 a.m. (New York, New York time) at least two Business Days
prior to the proposed issuance date or date of amendment, as the case may be, of any Letter of
Credit; or such later date and time as Administrative Agent and LC Issuer may agree in a particular
instance in their sole discretion. In the case of a request for an initial issuance of a Letter of
Credit, such LC Application shall specify in form and detail satisfactory to LC Issuer: (A) the
proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the
amount thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any drawing thereunder;
(G) any modification in respect of Rule 3.14 of the ISP, and (H) such other matters as LC Issuer
may reasonably require. In the case of a request for an amendment of any outstanding Letter of
Credit, such LC Application shall specify in form and detail satisfactory to LC Issuer (A) the
Letter of Credit to be amended; (B) the proposed date of amendment thereof (which shall be a Business Day); (C) the nature of the proposed amendment
(including any modification in respect of Rule 3.14 of the ISP); and (D) such other matters as LC
Issuer may reasonably require. Additionally, Borrower shall furnish to LC Issuer and
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, including any Issuer Documents, as LC Issuer or Administrative Agent
may reasonably require.




          (ii) Promptly after receipt of any LC Application, LC Issuer will confirm with Administrative
Agent (by telephone or in writing) that Administrative Agent has received a copy of such LC
Application and, if not, LC Issuer will provide Administrative Agent with a copy thereof. Unless
LC Issuer has received written notice from Administrative Agent (who hereby agrees to provide
contemporaneous notice to Borrower) or Borrower, at least one Business Day prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Article IV shall not then be satisfied, specifying in reasonable detail the
relevant condition or conditions not then satisfied, and the basis for such assertion, and such
condition or conditions, as applicable, remain unsatisfied on such requested date of issuance or
amendment, then, subject to the terms and conditions hereof, LC Issuer shall, on the requested
date, issue a Letter of Credit for the account of Borrower or enter into the applicable amendment,
as the case may be, in each case in accordance with LC Issuer’s usual and customary business
practices. Immediately upon the issuance of each Letter of Credit, each Lender shall be deemed to,
and hereby irrevocably and unconditionally agrees to, purchase from such LC Issuer a risk
participation in such Letter of Credit in an amount equal to the product of such Lender’s
Percentage Share, as applicable, times the amount of such Letter of Credit.




          (iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, LC Issuer will also
deliver to the appropriate Borrower and Administrative Agent a true and complete copy of such
Letter of Credit or amendment.




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     (c) Drawings and Reimbursements; Funding of Participations.



          (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, LC Issuer shall notify Borrower and Administrative Agent thereof. If LC
Issuer shall give notice to Borrower prior to 11:00 a.m. (New York, New York time) on the date of
any payment by LC Issuer under a Letter of Credit (such date, an “Honor Date”), Borrower
shall reimburse LC Issuer through Administrative Agent in an amount equal to the amount of such
drawing (and if LC Issuer shall give notice to Borrower at or after such time, Borrower shall
reimburse LC Issuer by such time on the following Business Day). If Borrower fails to so reimburse
LC Issuer by the applicable time, Administrative Agent shall promptly notify each Lender of the
Honor Date, the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the
amount of such Lender’s Percentage Share thereof. In such event, Borrower shall be deemed to have
requested a Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to
the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.1 for
the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the
Total Committed Amount, as applicable, and the conditions set forth in Article IV (without giving
effect to Borrower’s failure to so reimburse LC Issuer as provided in this Section 2.10(c)(i)
above). Any notice given by LC Issuer or Administrative Agent pursuant to this Section 2.10(c)(i)
may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate
confirmation shall not affect the conclusiveness or binding effect of such notice.




          (ii) Each Lender shall upon any notice pursuant to Section 2.10(c)(i) prior to 11:00 a.m. (New
York, New York time), make funds available to Administrative Agent for the account of LC Issuer, in
Dollars at Administrative Agent’s Office in an amount equal to such Lender’s Percentage Share of
the Unreimbursed Amount not later than 1:00 p.m. (New York, New York time) on the Business Day
specified in such notice by Administrative Agent (and, if such notice pursuant to Section
2.10(c)(i) is at or after 11:00 a.m. (New York, New York time), each Lender shall make such funds
available not later than 1:00 p.m. (New York, New York time) on the following Business Day),
whereupon, subject to the provisions of Section 2.10(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Base Rate Loan to Borrower in such amount. Administrative
Agent shall remit the funds so received to LC Issuer in Dollars.




          (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of
Base Rate Loans because the conditions set forth in Article IV (without giving effect to Borrower’s
failure to reimburse LC Issuer as provided in Section 2.10(c)(i)) cannot be satisfied, because LC
Issuer’s notice pursuant to Section 2.10(c)(i) is at or after 11:00 a.m. (New York, New York time)
or for any other reason, Borrower shall be deemed to have incurred from LC Issuer an LC Borrowing
in the amount of the Unreimbursed Amount that is not so refinanced, which LC Borrowing shall be due
and payable on the second Business Day following the corresponding Honor Date (together with
interest) and shall bear interest on the amount thereof from time to time outstanding at the Base
Rate in effect from time to time, and if not repaid by 11:00 a.m. (New York, New York time) on such
second succeeding Business Day, shall thereafter bear interest on the amount thereof from time to
time outstanding at the Default Rate. In such event, each Lender’s payment to Administrative Agent
for the account of LC Issuer pursuant to Section 2.10(c)(ii) shall be deemed payment in respect of
its participation in



29









 






such LC Borrowing and shall constitute an LC Advance from such Lender in
satisfaction of its participation obligation under this Section 2.10.




          (iv) Until each Lender funds its Loan or LC Advance pursuant to this Section 2.10(c) to
reimburse LC Issuer for any amount drawn under any Letter of Credit, interest in respect of such
Lender’s Percentage Share of such amount shall be solely for the account of LC Issuer.




          (v) Each Lender’s obligation to make Loans or LC Advances to reimburse LC Issuer for amounts
drawn under Letters of Credit, as contemplated by this Section 2.10(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any setoff,
counterclaim, recoupment, defense or other right which such Lender may have against LC Issuer,
Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Lender’s obligation to make Loans pursuant
to this Section 2.10(c) is subject to the amount of unutilized portion of the Total Committed
Amount, and the conditions set forth in Article IV (without giving effect to Borrower’s failure to
so reimburse LC Issuer pursuant to Section 2.10(c)(i) above). No such making of an LC Advance
shall relieve or otherwise impair the obligation of Borrower to reimburse LC Issuer for the amount of any payment made by LC Issuer under any Letter of Credit
issued at the request of Borrower, together with interest as provided herein.




          (vi) If any Lender fails to make available to Administrative Agent for the account of LC
Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.10(c) by the time specified in Section 2.10(c)(ii), LC Issuer shall be entitled to
recover from such Lender (acting through Administrative Agent), on demand, such amount with
interest thereon for the period from the date such payment is required to the date on which such
payment is immediately available to LC Issuer at a rate per annum equal to the greater of (a) the
Federal Funds Rate, and (b) a rate determined by LC Issuer in accordance with banking industry
rules on interbank compensation. A certificate of LC Issuer submitted to any Lender (through
Administrative Agent) with respect to any amounts owing under this clause (vi) shall be conclusive
absent manifest error.




          (vii) In the event Borrower or any Lender shall have made available funds to LC Issuer as
contemplated pursuant to Section 2.10(a)(iii)(E) with respect to LC Issuer’s risk with respect to
any Lender’s Percentage Share of any Letter of Credit: (x) with respect to any such funds made
available by Borrower, upon any notice by LC Issuer to Borrower of any payment by LC Issuer under
such Letter of Credit pursuant to Section 2.10(c)(i) above, Borrower may request that such funds be
applied in partial satisfaction of Borrower’s reimbursement obligations thereunder with respect
thereto (and if such funds are not so applied and Borrower reimburses LC Issuer pursuant to such
Section 2.10(c)(i) with respect to such payment by LC Issuer under such Letter of Credit, LC Issuer
will promptly return such unapplied funds to Borrower), and (y) with respect to any such funds made
available by any such Lender, LC Issuer shall be entitled to immediately apply any such funds to
such Lender’s Percentage Share of any Unreimbursed Amounts with respect to such Letter of Credit,
and in each such case such funds (and the application thereof) shall not be subject to the
provisions of Section 3.1 or 9.10 hereof.




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     (d) Repayment of Participations.



          (i) At any time after LC Issuer has made a payment under any Letter of Credit and has received
from any Lender such Lender’s LC Advance in respect of such payment in accordance with Section
2.10(c), if Administrative Agent receives for the account of LC Issuer any payment in respect of
the related Unreimbursed Amount or interest thereon (whether directly from Borrower or otherwise,
including proceeds of Cash Collateral applied thereto by Administrative Agent), Administrative
Agent will distribute to such Lender its Percentage Share thereof (appropriately adjusted, in the
case of interest payments, to reflect the period of time during which such Lender’s LC Advance was
outstanding) in the same funds as those received by Administrative Agent.




          (ii) If any payment received by Administrative Agent for the account of LC Issuer pursuant to
Section 2.10(c)(i) is required to be returned under any of the circumstances described in Section
10.10 (including pursuant to any settlement entered into by LC Issuer in its discretion), each
Lender shall pay to Administrative Agent for the account of LC Issuer its Percentage Share thereof
on demand of Administrative Agent, plus interest thereon from the date of such demand to the date
such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from
time to time in effect. The obligations of the Lenders under this clause shall survive the payment
in full of the Obligations and the termination of this Agreement.




     (e) Obligations Absolute. The obligation of Borrower to reimburse LC Issuer for each
drawing under each Letter of Credit issued at the request of Borrower and to repay each LC
Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including the following:



          (i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any
other Loan Document;




          (ii) the existence of any claim, counterclaim, setoff, defense or other right that Borrower
may have at any time against any beneficiary or any transferee of such Letter of Credit (or any
Person for whom any such beneficiary or any such transferee may be acting), any LC Issuer or any
other Person, whether in connection with this Agreement, the transactions contemplated hereby or by
such Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




          (iii) any draft, demand, certificate or other document presented under such Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of
any document required in order to make a drawing under such Letter of Credit;




          (iv) any payment by LC Issuer under such Letter of Credit against presentation of a draft or
certificate that does not strictly comply with the terms of such Letter of Credit; or any payment
made by LC Issuer under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or
other representative of or successor to any beneficiary or any transferee of such Letter of Credit,
including any arising in connection with any proceeding under any debtor relief Law;




31









 








          (v) any other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense available to,
or a discharge of, Borrower or any Subsidiary.



Borrower shall promptly examine a copy of each Letter of Credit requested by it and each amendment
thereto that is delivered to it and, in the event of any claim of noncompliance with Borrower’s
instructions or other irregularity, Borrower will immediately notify LC Issuer, and LC Issuer will
correct such claim in conformity with Borrower’s instructions or as otherwise agreed between
Borrower and LC Issuer, subject to the terms hereof. Borrower shall be conclusively deemed to have
waived any such claim against LC Issuer and its correspondents with respect to any Letter of Credit
issued at Borrower’s request unless such notice is given as aforesaid.




     (f) Role of LC Issuer. Each Lender and Borrower agrees that, in paying any drawing
under a Letter of Credit, LC Issuer shall have no responsibility to obtain any document (other than
any sight draft, certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the authority of the
Person executing or delivering any such document. Neither LC Issuer, nor Administrative Agent, nor
any of their respective Related Parties nor any correspondent, participant or assignee of LC Issuer
shall be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Majority Lenders, as
applicable; (ii) any action taken or omitted in the absence of gross negligence, willful
misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document
or instrument related to any Letter of Credit or Issuer Document. Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided, however, that this assumption is not intended to, and
shall not, preclude Borrower’s pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. Neither LC Issuer, nor
Administrative Agent, nor any of their respective Related Parties nor any correspondent,
participant or assignee of LC Issuer shall be liable or responsible for any of the matters
described in clauses (i) through (v) of Section 2.10(e); provided, however, that
anything in such clauses to the contrary notwithstanding, Borrower may have a claim against LC
Issuer, and LC Issuer may be liable to Borrower, to the extent, but only to the extent, of any
direct, as opposed to consequential or exemplary, damages suffered by Borrower which Borrower
proves were caused by LC Issuer’s willful misconduct, gross negligence or material breach of any of
its obligations hereunder or under any Issuer Document or under any Letter of Credit issued on
Borrower’s behalf after the presentation to LC Issuer by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, LC Issuer may accept documents that appear on
their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and LC Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.



32









 





     (g) Cash Collateral.



          (i) Within one Business Day following the request of Administrative Agent, (A) if LC Issuer
has honored any full or partial drawing request under any Letter of Credit and such drawing has
resulted in an LC Borrowing that remains outstanding for more than two Business Days thereafter, or
(B) if, as of the Letter of Credit Expiration Date, any LC Obligation with respect to Borrower for
any reason remains outstanding, Borrower shall, in each case, immediately Cash Collateralize the
then Outstanding Amount of all such LC Obligations.




          (ii) For purposes of this Agreement, “Cash Collateralize” means to pledge and deposit with or
deliver to Administrative Agent, for the benefit of LC Issuer and Lenders, as collateral for the
applicable LC Obligations, cash or deposit account balances pursuant to documentation in form and
substance satisfactory to Administrative Agent and LC Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings. Borrower hereby grants
to Administrative Agent, for the benefit of LC Issuer and Lenders, to the extent of its interests
in any such cash or deposit account balances, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be
maintained in blocked, interest bearing deposit accounts at Administrative Agent.



When the LC Borrowing giving rise to the posting of Cash Collateral has been discharged or Borrower
otherwise has no LC Obligations outstanding, and no other event of the nature described in Section
2.10(g)(i)(A) then exists, any Lien on any Cash Collateral shall
automatically terminate and Administrative Agent will promptly return such Cash Collateral to
Borrower.




     (h) Applicability of ISP and UCP. Unless otherwise expressly agreed by LC Issuer and
Borrower when a Letter of Credit is issued (including any such agreement applicable to any Letter
of Credit outstanding under the Existing Agreement as of the Closing Date, (i) the rules of the ISP
shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and
Practice for Documentary Credits, as most recently published by the International Chamber of
Commerce at the time of issuance shall apply to each commercial or documentary Letter of Credit.



     (i) Letter of Credit Fees. Borrower shall pay, solely with respect to the Letters of
Credit issued at the request of Borrower, to Administrative Agent for the account of each Lender in
accordance with such Lender’s Percentage Share, a Letter of Credit fee (the “Letter of Credit
Fee”) for each Letter of Credit equal to the Applicable Margin for Eurodollar Loans
times the daily amount available to be drawn under such Letter of Credit; provided,
no such Letter of Credit Fee shall accrue or be deemed to have accrued, or be owing or payable by
Borrower to Administrative Agent for the account of any Lender with respect to such Lender’s
Percentage Share of such Letter of Credit in the event Borrower has entered into an arrangement
with LC Issuer with respect to LC Issuer’s risk with respect to such Lender’s obligation to fund
its Percentage Share of Unreimbursed Amounts with respect to such Letter of Credit. as contemplated
in Section 2.10(a)(iii)(E). For purposes of computing the daily amount available to be drawn under
any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.6. Subject to the proviso set forth in the second immediately preceding sentence hereof,
Letter of Credit Fees shall be computed on a quarterly basis in arrears



33









 




and shall be due and
payable on the last day of each March, June, September and December. If there is any change in
such Applicable Margin during any quarter, the daily amount available to be drawn under each Letter
of Credit shall be computed and multiplied by such Applicable Margin separately for each period
during such quarter that such Applicable Margin was in effect.




     (j) Fronting Fee and Documentary and Processing Charges Payable to LC Issuer.
Borrower shall pay directly to LC Issuer for its own account a fronting fee solely with respect to
each Letter of Credit requested by Borrower, at such rate as agreed to by Borrower and LC Issuer,
computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis
in arrears, and due and payable on the first Business Day after the end of each March, June,
September and December. For purposes of computing the daily amount available to be drawn under any
Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with
Section 1.6. In addition, Borrower shall pay directly to LC Issuer for its own account the
customary issuance, presentation, amendment and other processing fees, and other standard costs and
charges, of LC Issuer relating to letters of credit as from time to time in effect, effective
schedules of which will be provided to Borrower upon request. Such customary fees and standard
costs and charges are due and payable quarterly in arrears on the first Business Day after the end
of each March, June, September and December and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control.



     (l) Transferees of Letters of Credit. If any Letter of Credit provides that it is
transferable, LC Issuer shall have no duty to determine the proper identity of anyone appearing as
transferee of such Letter of Credit, nor shall LC Issuer be charged with responsibility of any
nature or character for the validity or correctness of any transfer or successive transfers, and
payment by LC Issuer to any purported transferee or transferees as determined by LC Issuer is
hereby authorized and approved, and Borrower requesting such Letter of Credit releases each Lender
Party from, and agrees to hold each Lender Party harmless and indemnified against, any liability or
claim in connection with or arising out of the foregoing, WHICH INDEMNITY SHALL APPLY WHETHER
OR NOT ANY SUCH LIABILITY OR CLAIM IS IN ANY WAY OR TO ANY EXTENT 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 to indemnification for that portion, if any, of any liability or claim
which is proximately caused by its own individual gross negligence or willful misconduct, as
determined in a final judgment.



ARTICLE III  — Payments to Lenders




     Section 3.1. Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by Borrower hereunder shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise
expressly provided herein, all payments by Borrower hereunder shall be made to Administrative
Agent, for the account of the respective Lenders to which such payment is owed, at the
Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00
noon, New York, New York time on the date specified herein. Administrative Agent will promptly
distribute to each Lender its Percentage Share (or other applicable share as provided



34









 




herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by Administrative Agent after 12:00 noon, New York, New York time shall be deemed
received on the next succeeding Business Day and any applicable interest or fee shall continue to
accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day,
payment shall be made on the next following Business Day, and such extension of time shall be
reflected in computing interest or fees, as the case may be.




     (b) Order of Payment. 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, subject, with respect
to money received pursuant to the exercise of remedies under the Security Documents, to
Section 8.3 (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);




     (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, or held by LC Issuer and applied to LC
Obligations as they mature; 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 2.7 and 2.8, 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 LC Issuer for the purchase of a
participation under Section 2.10(c) or to Administrative Agent under Section 9.9, any amounts
otherwise distributable under this section to such Lender shall be deemed to belong to LC Issuer or
Administrative Agent, respectively, 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.




     (c) Payments by Borrower; Presumptions by Administrative Agent. Unless Administrative
Agent shall have received notice from Borrower prior to the date on which any payment is due to
Administrative Agent for the account of Lenders or LC Issuer hereunder that Borrower will not make
such payment, Administrative Agent may assume that Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to Lenders or LC Issuer,
as the case may be, the amount due. In such event, if Borrower has not in fact made such payment,
then each Lender or LC Issuer, as the case may be, severally agrees to repay to Administrative
Agent forthwith on demand the amount so



35









 




distributed to such Lender or LC Issuer, in immediately
available funds with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to Administrative Agent, at the greater of
the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking
industry rules on interbank compensation. A notice of the Administrative Agent to any Lender with
respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.




     (d) Failure to Satisfy Conditions Precedent. If any Lender makes available to
Administrative Agent funds for any Loan to be made by such Lender as provided in Article II, and
such funds are not made available to Borrower by Administrative Agent because the conditions to the
applicable Loan set forth in Article IV are not satisfied or waived in accordance with the terms
hereof, Administrative Agent shall return such funds (in like funds as received from such Lender)
to such Lender, without interest.



     (e) Obligations of Lenders Several. The obligations of Lenders hereunder to make
Loans, to fund participations in Letters of Credit and to make payments pursuant to Section 10.4(c)
are several and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 10.4(c) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall
be responsible for the failure of any other Lender to so make its Loan, to purchase its
participation or to make its payment under Section 10.4(c).



     (f) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



     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, Letters of Credit, participations in Letters of Credit or
commitments under this Agreement.



     Section 3.3. Increased Cost of Eurodollar Loans or Letters of Credit. 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):



36









 





     (a) shall change the basis of taxation of payments to any Lender Party of any principal,
interest, or other amounts attributable to any Eurodollar Loan or Letter of Credit or otherwise due
under this Agreement in respect of any Eurodollar Loan or Letter of Credit (other than taxes
imposed on, or measured by, such Lender Party’s overall net income (however denominated), and
franchise taxes imposed on such Lender Party (in lieu of net income taxes) 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, special deposit or
similar requirements in respect of any Eurodollar Loan or Letter of Credit (excluding those for
which such Lender Party is fully compensated pursuant to adjustments made in the definition of
Eurodollar 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 Eurodollar Loan or Letter of Credit, the result of which is to increase the
cost to any Lender Party of funding or maintaining any Eurodollar Loan or Letter of Credit or to
reduce the amount of any sum receivable by any Lender Party in respect of any
Eurodollar Loan or of issuing any Letter of Credit 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 Eurodollar 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 3.6(a) 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 3.6(a) in respect of any costs resulting from such event,
only be entitled to payment under Section 3.2, 3.3, or 3.6(a) 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 3.6(a) hereof.



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     Section 3.5. Illegality. If any Lender Party determines that any Law enacted, changed
or construed after the Closing Date has made it unlawful, or that any Governmental Authority has
asserted that it is unlawful, for such Lender Party or its applicable Lending Office to make,
maintain or fund Eurodollar Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority
of such Lender Party to purchase or sell, or to take deposits of, Dollars in the London interbank
market, then, on notice thereof by such Lender Party to the Borrower through the Administrative
Agent, any obligation of such Lender Party to make or continue Eurodollar Loans or to convert Base
Rate Loans to Eurodollar Loans, or, if such notice relates to the unlawfulness or asserted
unlawfulness of charging interest based on the Eurodollar Rate, to make Base Rate Loans as to which
the interest rate is determined with reference to the Eurodollar Rate, shall be suspended until
such Lender notifies Administrative Agent and Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrower shall, upon demand from such
Lender Party (with a copy to the Administrative Agent), prepay or, if applicable, convert all
Eurodollar Loans of such Lender Party and Base Rate Loans as to which the interest rate is
determined with reference to the Eurodollar Rate to Base Rate Loans as to which the rate of
interest is not determined with reference to the Eurodollar Rate, either on the last day of
the Interest Period therefor, if such Lender Party may lawfully continue to maintain such
Eurodollar Loans to such day, or immediately, if such Lender Party may not lawfully continue to
maintain such Eurodollar Loans or Base Rate Loan. Notwithstanding the foregoing and despite the
illegality for such Lender Party to make, maintain or fund Eurodollar Loans or Base Rate Loans as
to which the interest rate is determined with reference to the Eurodollar Rate, that Lender Party
shall remain committed to make Base Rate Loans and shall be entitled to recover interest at the
Base Rate. Upon any such prepayment or conversion, Borrower shall also pay accrued interest on the
amount so prepaid or converted.



     Section 3.6. Inability to Determine Rates; Market Disruption.



     (a) If Majority Lenders determine that for any reason in connection with any request for a
Loan or a conversion to or continuation thereof that (i) Dollar deposits are not being offered to
banks in the London interbank eurodollar market for the applicable amount and Interest Period of
such Loan, (ii) adequate and reasonable means do not exist for determining the Eurodollar Rate for
any requested Interest Period with respect to a proposed Eurodollar Loan or in connection with a
Base Rate Loan, or (iii) the Eurodollar Rate for any requested Interest Period with respect to a
proposed Eurodollar Loan or in connection with a Eurodollar Loan does not adequately and fairly
reflect the cost to such Lenders of funding such Loan, Administrative Agent will promptly so notify
Borrower and each Lender. Thereafter, the obligation of Lenders to make or maintain Eurodollar
Loans and Base Rate Loans as to which the interest rate is determined with reference to the
Eurodollar Rate shall be suspended until Administrative Agent (upon the instruction of Majority
Lenders) revokes such notice. Upon receipt of such notice, Borrower may revoke any pending request
for a Borrowing of, conversion to or continuation of Eurodollar Loans or, failing that, will be
deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.



     (b) If at any time Majority Lenders determine (which determination shall be conclusive and
binding upon Borrower) that, as a result of a material adverse change in, or material disruption of
conditions in, the financial, banking or capital markets, the Eurodollar Rate or the Base Rate, as
the case may be, will not adequately and fairly reflect the cost to such



38









 




Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans, Administrative Agent
shall give notice thereof to Borrower and Lenders as soon as practicable thereafter and, upon
delivery of such notice, such notice shall be in effect until the earlier of (i) the thirtieth
(30th) day following such notice and (ii) the date on which Administrative Agent (upon
the instruction of Majority Lenders) revokes such notice; provided, upon the expiration of
any such thirty (30) day period, Majority Lenders may pursuant to a reaffirmation of any such
determination, extend the effectiveness of such notice for subsequent thirty (30) day periods
without limit.




     Section 3.7. Funding Losses. In addition to its other obligations hereunder, with
respect to each 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
Eurodollar Loans), as a result of (a) any payment or prepayment (whether or not authorized or
required hereunder) of all or a portion of a Eurodollar 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 Borrower, or (d) any Conversion (whether or not
authorized or required hereunder) of all or any portion of any Eurodollar Loan into a Base Rate
Loan or into a different Eurodollar 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 3.8. Reimbursable Taxes. With respect to the Commitments, 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 Eurodollar Loans or Letters of Credit (whether or not legally or correctly
imposed, assessed, levied or collected), excluding, however, any taxes imposed on or measured by
the overall net income (however denominated) and franchise taxes imposed on (in lieu of income
taxes) 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,



39









 




Borrower shall pay on the due
date of such payment, by way of additional interest, such additional amounts 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 Eurodollar
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
Eurodollar 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 3.9. Replacement of Lenders. If any Lender Party requests compensation under
Sections 3.2 or 3.3, notifies Borrower pursuant to Section 3.5 that it is unable to make, maintain
or fund Eurodollar Loans, or is among Majority Lenders determining that the Market Disruption
Spread is applicable pursuant to Section 3.6(b), or if Borrower is required to pay any additional
amount to any Lender Party or any Governmental Authority for the account of any Lender pursuant to
Section 3.8, or if any Lender Party is a Defaulting Lender, then Borrower may, at its sole expense
and effort, upon notice to such Lender Party and Administrative Agent, require such Lender Party to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in, and consents required by, Section 10.5), all of its interests, rights and obligations under
this Agreement and the related Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender Party, if a Lender Party accepts such assignment),
provided that:



40









 





     (a) Borrower or such assignee shall have paid to Administrative Agent the assignment fee
specified in Section 10.5(b);



     (b) such Lender Party shall have received payment of an amount equal to the outstanding
principal of its Loans and LC Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.7) from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or Borrower (in the case of all other amounts);



     (c) in the case of any such assignment resulting from a claim for compensation under Section
3.2 or 3.3 or 3.6(a), inability to make, maintain or fund Eurodollar Loans under Section 3.5,
application of the Market Disruption Spread pursuant to Section 3.6(b), or payments required to be
made pursuant to Section 3.8, such assignment will result in a reduction in such compensation or
payments, increased availability of Eurodollar Loans, or revocation of application of the Market
Disruption Spread thereafter; and



     (d) such assignment does not conflict with applicable Laws.



     A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require
such assignment and delegation cease to apply.



ARTICLE IV — Conditions Precedent to Lending




     Section 4.1. Documents to be Delivered. No Lender has any obligation to make its
first Loan, and LC Issuer has no obligation to issue the first Letter of Credit, 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 each Security Document.




     (c) Certain certificates including:




     (i) An “Omnibus Certificate” of the secretary or assistant secretary and any
vice president of Plains Marketing GP Inc., the general partner of Borrower, which
shall contain the names and signatures of the officers of such company authorized to
execute Loan Documents on behalf of Borrower 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 this Agreement and the other Loan Documents delivered or to be
delivered by Borrower in connection herewith and the consummation of the
transactions contemplated herein and therein, (2) a copy of the charter documents of
Borrower and its general partner, and all amendments thereto, certified by the
appropriate official of its jurisdiction of organization, and




41












 






(3) a copy of the agreement of limited partnership of
Borrower and bylaws of its general partner;



     (ii) An “Omnibus Certificate” of the secretary or assistant secretary and any
vice president of Plains All American GP LLC (“GP LLC”), the general partner
of Plains AAP, L.P., the sole member of PAA GP LLC (“MLP GP”), the general
partner of PAA, which shall contain the names and signatures of the
officers of such general partner authorized to execute Loan Documents on behalf
of PAA 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 general partner and in full force and effect at the time
this Agreement is entered into, authorizing the execution of the PAA Guaranty and
the other Loan Documents delivered or to be delivered by PAA in connection herewith
and the consummation of the transactions contemplated herein and therein, (2) a copy
of the charter documents of PAA, MLP GP, Plains AAP, L.P. and GP LLC, and all
amendments thereto, certified by the appropriate official of its jurisdiction of
organization, and (3) a copy of the agreement of limited partnership or limited
partnership agreement of PAA and Plains AAP, L.P., and the limited liability company
agreement of GP LLC and MLP GP;




     (iii) A certificate of the chief financial officer of Plains Marketing GP Inc.,
regarding satisfaction of Section 4.2; and




     (d) A certificate (or certificates) of the due formation, valid existence and good
standing, as applicable, of Borrower in Texas, issued by the Texas Secretary of State, and
PAA in Delaware, issued by the Delaware Secretary of State.




     (e) Favorable opinions of Tim Moore, Esq., General Counsel for Borrower and PAA,
substantially in the form set forth in Exhibit D-1, and Fulbright & Jaworski L.L.P., special
Texas and New York counsel to Borrower and PAA, substantially in the form set forth in
Exhibit D-2.




     (f) The Initial Financial Statements.




     (g) Administrative Agent shall have received all documents and instruments which
Administrative Agent has then requested (including opinions of legal counsel for Borrower
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 Borrower 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.




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



42









 




Without limiting the generality of the provisions of Section 9.4, for purposes of determining
compliance with the conditions specified in this Section 4.1, each Lender that has signed this
Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless Administrative Agent shall have received notice from such Lender
prior to the proposed Closing Date specifying its objection thereto, and
Administrative Agent hereby agrees to promptly provide Borrower with a copy of any such notice
received by Administrative Agent.




     Section 4.2. Additional Conditions Precedent. No Lender has any obligation to make
any Loan (including its first), and LC Issuer has no obligation to issue any Letter of Credit
(including its first), unless the following conditions precedent have been satisfied:




     (a) All representations and warranties made by Borrower or PAA in any Loan Document
shall be true on and as of the date of such Loan or the date of issuance of such Letter of
Credit as if such representations and warranties had been made as of the date of such Loan
or the date of issuance of such Letter of Credit 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 or “Default” (as such term is used and defined in the PAA Credit
Agreement) shall exist at the date of such Loan or the date of issuance of such Letter of
Credit or shall result from such Loan or such issuance of such Letter of Credit.



ARTICLE V  — Representations and Warranties




     To confirm each Lender’s understanding concerning Borrower and PAA, and their respective
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 of Borrower and PAA 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. Borrower 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 of Borrower and PAA 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



43









 







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 of Borrower
and PAA 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 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
Governmental Authority is required on the part of Borrower or PAA pursuant to the provisions of any
material Law applicable to it as a condition to its execution, delivery or performance of any Loan
Document to which it is a party or (ii) to consummate any transactions contemplated by the Loan
Documents to which it is a party.



     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 Borrower and PAA,
to the extent a party 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 PAA’s and Borrower’s Consolidated financial position at the
date thereof and the Consolidated results of PAA’s and Borrower’s operations for the periods
thereof, and in the case of the annual Initial Financial Statements, Consolidated cash flows for
the period thereof. Except as disclosed pursuant to Section 6.4, 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, Borrower has
no 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 disclosed in the Disclosure Schedule or pursuant to Section 6.4, Borrower
is not 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 Borrower
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



44









 







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 Borrower 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 Borrower
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, in
the Disclosure Schedule or pursuant to Section 6.4: (i) there are no actions, suits or legal,
equitable, arbitrative or administrative proceedings pending, or to the knowledge of Borrower
overtly threatened, against Borrower or affecting any Collateral (including, without limitation,
any which challenge or otherwise pertain to Borrower’s title to any Collateral) before any
Governmental Authority having jurisdiction over it 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 Governmental Authority having jurisdiction over it against Borrower or, to
the knowledge of Borrower, Borrower’s stockholders, partners, directors or officers or affecting
any Collateral 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 or disclosed pursuant to
Section 6.4: (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, Borrower 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. Except as set forth in the
Disclosure Schedule or pursuant to Section 6.4, Borrower 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



45









 







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 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 Borrower or any of
its Subsidiaries 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. Accounts; Title to Properties. All Accounts arising from or with
respect to contracts for the sale of Financed Eligible Hedged Inventory shall qualify as Approved
Eligible Receivables, and Borrower has complied in all respects with the terms of each related
contract for sale. Borrower has good and defensible title to all of its material properties and
assets, free and clear of all Liens (other than Liens permitted pursuant to Section 7.1) and of all
impediments to the use of such properties and assets in its business, other than such impediments
that would not reasonably be expected to cause a Material Adverse Change.



     Section 5.14. Government Regulation. Neither Borrower nor PAA is subject to
regulation under the Investment Company Act of 1940 (as any of the preceding acts have been
amended) or any other Law which regulates the incurring by Borrower or PAA 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 PAA 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 5.15. Insider. Neither Borrower nor PAA, nor any Person having “control” (as
that term is defined in 12 U.S.C. § 375b(9) or in regulations promulgated pursuant thereto) of
Borrower or PAA, 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 5.16. Solvency. Upon giving effect to the issuance of the Notes, the
execution of the Loan Documents by Borrower or PAA and the consummation of the transactions
contemplated hereby, (i) each of Borrower and PAA will be solvent (as such term is used in



46









 







applicable bankruptcy, liquidation, receivership, insolvency or similar Laws), and the sum of each
of Borrower’s and PAA’s absolute and contingent liabilities, including the Obligations or
guarantees thereof, shall not exceed the fair market value of Borrower’s or PAA’s assets,
respectively, and (ii) each of Borrower’s and PAA’s capital should be adequate for the businesses
in which it is engaged and intends to be engaged. Neither Borrower nor PAA has incurred (whether
under the Loan Documents or otherwise), and neither Borrower nor PAA intends to incur or reasonably
foreseeably believes that it will incur, debts which will be beyond its ability to pay as such
debts mature.



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 of Borrower and PAA 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. Borrower will at all times
maintain full and accurate books of account and records. Borrower will 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: (i) a copy of PAA’s Form 10-K, which report shall include PAA’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, stating that such
Consolidated financial statements have been so prepared, and (ii) upon and following the
termination or release of the PAA Guaranty, Borrower’s complete audited Consolidated financial
statements, prepared in reasonable detail in accordance with GAAP. 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: (i) a copy of PAA’s Form 10-Q, which
report shall include PAA’s unaudited Consolidated balance sheet as of the end of such Fiscal
Quarter and Consolidated statements of PAA’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, and (ii) upon and following the termination or release of the PAA Guaranty, 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



47









 







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 each set of financial
statements furnished under subsection (a) of this section, furnish a copy of the certificate
delivered to administrative agent and lenders under the PAA Credit Agreement pursuant to Section
6.2(b) thereof.



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



     (d) On the fifteenth (15th) day of each month (or the next succeeding Business Day,
if the 15th is not a Business Day), and together with each Borrowing Notice, a Summary Collateral
Report (which, if delivered with a Borrowing Notice, shall include the Hedged Eligible Inventory
and related Hedging Contracts and sale contracts requested to be financed thereby), substantially
in the form of Exhibit G attached hereto, specifying (i) volumes of Financed Hedged Eligible
Inventory, identified by type of Petroleum Product, to be subject to Cash and Carry Purchases or to
be stored at or remain stored at Approved Locations, including hedged price, Hedged Value and
Approved Locations where such Financed Hedged Eligible Inventory is to be delivered and/or stored,
(ii) any corresponding Hedging Contracts (including Master ISDA Agreements, counterparties,
confirmations thereunder) covering such Financed Hedged Eligible Inventory, with hedging account
information with respect thereto, including volumes and pricing listed by counterparty, date and
confirmation number, and (iii) any corresponding sale contracts (with purchaser, date, volumes,
prices and such other identifying information as Administrative Agent may reasonably request)
pursuant to which Borrower has contracted to sell such Financed Hedged Eligible Inventory,
including specifying volumes, sale price and Sale Value.


Documents required to be delivered pursuant to Section 6.2(a)(i) or (b)(i) (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 PAA posts such documents, or provides a link thereto, on PAA’s
website on the Internet at the website address listed on Schedule 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 of Borrower and PAA 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 Borrower’s businesses and operations. In each case subject to the last sentence of this
Section 6.3, Borrower 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 Borrower’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 of Borrower and PAA
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 or PAA, as the case may be, its representatives. Each of the foregoing
inspections and examinations shall be made subject to compliance with



48









 







applicable safety standards
and the same conditions applicable to Borrower in respect of property of Borrower on the premises
of Persons other than Borrower or an Affiliate of Borrower, 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, employee or representative of Borrower or PAA shall be
subject to any applicable attorney-client privilege exceptions which Borrower or PAA determines is
reasonably necessary and compliance with conditions to disclosures under non-disclosure agreements
between Borrower or PAA and Persons other than Borrower, PAA or an Affiliate of Borrower or PAA 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.



     Each of Borrower and PAA acknowledges that (a) the Administrative Agent will make available to
the Lenders and LC Issuer materials and/or information provided by or on behalf of Borrower or PAA
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to Borrower, PAA or their respective securities) (each, a “Public
Lender”). If Borrower or PAA clearly, conspicuously and prominently marks the front page of
any Borrower Materials furnished by it with the term “PUBLIC”, then (x) each of Borrower and PAA
shall be deemed to have authorized Administrative Agent, LC Issuer and Lenders to treat such
Borrower Materials as either publicly available information or not material information (although
it may be sensitive and proprietary) with respect to Borrower, PAA or their respective securities
for purposes of United States Federal and state securities laws; (y) all Borrower Materials so
marked “PUBLIC” are permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) Administrative Agent shall be entitled to treat any Borrower Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Investor.”



     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 (i) occurrence of any Material Adverse Change or (ii) occurrence of any event
or condition that is covered by any of Section 5.6 (next-to-last sentence), 5.7 (last
sentence), 5.9, 5.10, 5.11 or 5.12 which would reasonable be expected to cause a Material
Adverse Change,




     (b) the occurrence of any Default,




     (c) the acceleration of the maturity of any Indebtedness owed by Borrower or of any
default by Borrower under any indenture, mortgage, agreement, contract or other instrument
to which it is a party or by which it or any of its 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,



49









 






     (e) any claim under any Environmental Law adverse to Borrower or of potential liability
with respect to such claim, or any other adverse claim asserted against Borrower or with
respect to Borrower’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 Borrower or with respect to Borrower’s properties, which would reasonably be
expected to cause a Material Adverse Change.


Upon the occurrence of any of the foregoing Borrower 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. Borrower (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 Collateral and its other 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.
PAA will maintain and preserve its existence, except in each case (a)
where the failure so to maintain or preserve would not be reasonably expected to cause a
Material Adverse Change (as defined in the PAA Credit Agreement) or (b) as a result of statutory
conversion. Borrower will also notify Administrative Agent in writing at least twenty Business Days
prior to the date that Borrower changes its name or the location of its chief executive office or
principal place of business or the place where it keeps its books and records concerning the
Collateral, furnishing with such notice any necessary financing statement amendments or requesting
Administrative Agent to prepare the same.



     Section 6.6. Payment of Taxes, etc. Borrower 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, Borrower will keep
insured (by responsible and reputable insurance companies or associations) or self-insured, at the
option of Borrower, 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 may be maintained by PAA.



50









 





     Section 6.8. Compliance with Agreements and Law. Borrower will strictly perform and
comply with the terms of each contract for the sale of Hedged Eligible Inventory and will perform
all other 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. Borrower 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. Agreement to Deliver Security Documents. Borrower will deliver, to
further secure the Obligations whenever requested by Administrative Agent in its sole and absolute
discretion, chattel mortgages, security agreements, financing statements and other Security
Documents in form and substance satisfactory to Administrative Agent for the purpose of granting,
confirming, and perfecting first and prior liens
or security interests, subject to applicable Liens permitted pursuant to Section 7.1, in (i)
all Financed Hedged Eligible Inventory, (ii) all Hedging Contracts covering Financed Hedged
Eligible Inventory, (iii) all contracts for the sale of Financed Hedged Eligible Inventory and
Accounts arising thereunder, and (iv) all proceeds of the foregoing.



     Section 6.10. Perfection and Protection of Security Interests and Liens. Borrower
will from time to time deliver to Administrative Agent any financing statements, continuation
statements, extension agreements and other documents, properly completed and executed (and
acknowledged when required) by Borrower in form and substance satisfactory to Administrative Agent,
which Administrative Agent requests for the purpose of perfecting, confirming, or protecting any
Liens or other rights in Collateral securing any Obligations.



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. Limitation on Liens. Borrower will not create, assume or permit to
exist:



     (i) any Lien upon any Collateral except (A) Liens created pursuant to the Security Documents,
(B) Permitted Inventory Liens, (C) statutory Liens in respect of First Purchase Crude Payables, (D)
Broker Liens on margin deposits with respect to Hedging Contracts, and (E) any other Liens
expressly permitted to encumber such Collateral under any Security Document; or



     (ii) any Lien on any Petroleum Products commingled with Financed Hedged Eligible Inventory, or
on any sales contracts (and Accounts therefrom and proceeds thereof) covering



51









 







Petroleum Products in
addition to Financed Hedged Eligible Inventory, or with respect to any Hedging Contracts covering
Financed Hedged Eligible Inventory, other than Broker Liens on margin deposits with respect
thereto, unless such lien creditor has agreed in writing that Administrative Agent’s and Lenders’
rights with respect to such Petroleum Products, sales contracts, Hedging Contracts and collateral
rights related thereto are first and prior to such lien creditor’s rights therein;



     Section 7.2. Limitation on Mergers. Except as expressly provided in this section,
Borrower will not (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, Borrower may merge into or
consolidate or amalgamate with any Subsidiary
of PAA; provided, Borrower is the surviving business entity and after giving effect
thereto, no Default exists.



     Section 7.3. Limitation on Sales of Collateral. Borrower will not sell, transfer,
lease, exchange, alienate or dispose of any Collateral except in the ordinary course of business on
ordinary trade terms.



     Section 7.4. Limitation on New Businesses. Borrower will not 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. Borrower will enter into Hedging Contracts only
in the ordinary course of its business, with the intent and for the purpose of mitigating and
managing risks, consistent with past practices and in accordance with the policies described in
PAA’s most-recently filed Annual Report on Form 10-K, and not for speculative purposes.



     Section 7.5. 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, Borrower will not, directly or
indirectly, enter into, create, or consent to be bound to any contract or other consensual
restriction that restricts the ability of Borrower to create or maintain Liens on its assets in
favor of Administrative Agent, LC Issuer and Lenders to secure, in whole or part, the Obligations.



     Section 7.6. PAA Debt Coverage Ratio. At the end of any Fiscal Quarter, the PAA 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	 	 
	 

	 	 	 	(as defined in the PAA Credit Agreement):
	 	5.50 to 1.0
	 
	 	 	 	 	 	 
	 

	 	(ii)
	 	Other than an Acquisition Period:
	 	4.75 to 1.0






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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 or any LC Borrowing 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) Either Borrower or PAA 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) Borrower fails to duly observe, perform or comply with any covenant, agreement or
provision of Section 6.4 or Article VII;



     (d) Either Borrower or PAA 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 Borrower or PAA in connection with any Loan Document to which it is a party 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) Borrower shall default in the payment when due of any principal of or interest on any of
its other Indebtedness, or, as a result of an early termination event or similar event, on any net
hedging obligations, in excess of $25,000,000 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 Borrower 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 Borrower’s related net hedging obligations in excess of $25,000,000 to become due and payable;



53









 





     (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 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) Borrower, any Subsidiary of Borrower, Plains All American GP LLC, Plains AAP, L.P., PAA GP
LLC, PAA, or any “significant subsidiary” of PAA, 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:




     (i) has entered against it a judgment, decree or order for relief by a Governmental
Authority of competent jurisdiction having jurisdiction over it 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 any Collateral
or 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;



     (i) Borrower:




     (i) has entered against it a final judgment for the payment of money in excess of
$25,000,000 (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
Governmental Authority having jurisdiction over it against any Collateral or all or any
substantial part of its assets, and such writ or warrant of attachment or any similar



54









 







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; or



     (k) Any “Event of Default” shall occur, as such term is used and defined in the PAA Credit
Agreement.


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,
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. Upon any such acceleration, any
obligation of any Lender to make any further Loans and any obligation of LC Issuer to issue Letters
of Credit hereunder 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, do either or both
of the following: (1) terminate or suspend any obligation of Lenders to make Loans hereunder and
any obligation of LC Issuer to issue Letters of Credit 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.




     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.



     Section 8.3. Application of Proceeds of Sale of Collateral. Notwithstanding anything
herein to the contrary, the proceeds of any sale of Collateral shall be applied:



     (a) first, to the payment of all necessary costs and expenses incident to such Collateral
sale, including but not limited to all court costs and charges of every character in the event
foreclosed by suit or any judicial proceeding,



     (b) then, to the Loans and LC Obligations (including specifically without limitation the
principal and interest with respect thereto);



     (c) then, to all other outstanding Obligations, and



55









 





     (d) then, the remainder, if any, shall be paid to Borrower, or to Borrower’s heirs, devisees,
representatives, successors or assigns, or such other persons as may be entitled thereto by law.



ARTICLE IX  — Administrative Agent




     Section 9.1. Appointment and Authority. Each of the Lenders and the LC Issuer hereby
irrevocably appoints Bank of America, N.A. to act on its behalf as the Administrative Agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to Administrative Agent by the
terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Administrative Agent,
the Lenders and the LC Issuer, and neither Borrower nor any other Lender Party shall have rights as
a third party beneficiary of any of such provisions (other than the right to reasonably approve a
successor Administrative Agent under Section 9.6 or with respect to application of payments among
Lenders as provided in Section 9.10).



     Section 9.2. Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term “Lender” or
“Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.



     Section 9.3. Exculpatory Provisions. The Administrative Agent shall have no duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent shall not:



     (a) be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing;



     (b) have any duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents
that the Administrative Agent is required to exercise as directed in writing by the Majority
Lenders (or such other number or percentage of the Lenders as shall be expressly provided for
herein or in the other Loan Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Administrative Agent to liability or that is contrary to any Loan Document or applicable law; and



     (c) except as expressly set forth herein and in the other Loan Documents, have any duty to
disclose, nor shall it be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.



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     Administrative Agent shall not be liable for any action taken or not taken by it (i) with the
consent or at the request of the Majority Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.1 and 8.2) or (ii) in the absence of
its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed to
have knowledge of any Default unless and until notice describing such Default is given to
Administrative Agent by Borrower, a Lender or LC Issuer.



     Administrative Agent shall not be responsible for nor have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.



     Section 9.4. Reliance by Administrative Agent. Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent also
may rely upon any statement made to it orally or by telephone and believed by it to have been made
by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of
Credit, that by its terms must be fulfilled to the satisfaction of a Lender or LC Issuer,
Administrative Agent may presume that such condition is satisfactory to such Lender or LC Issuer
unless Administrative Agent shall have received notice to the contrary from such Lender or LC
Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Administrative
Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



     Section 9.5. Delegation of Duties. Administrative Agent may perform any and all of
its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by Administrative Agent. Administrative Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.



     Section 9.6. Resignation of Administrative Agent. Administrative Agent may at any time give notice of its resignation to the Lenders, LC
Issuer and Borrower, which notice shall set forth the proposed date of resignation. Upon receipt
of any such notice of resignation, the



57









 







Majority Lenders shall have the right to appoint a successor
(subject to the approval of Borrower, unless a Default has occurred and is continuing, which
approval will not be unreasonably withheld), which shall, with respect to the Administrative Agent,
be a bank with an office in the United States, or an Affiliate of any such bank with an office in
the United States. If no such successor shall have been so appointed by the Majority Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may on behalf of the Lenders and
LC Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if Administrative Agent shall notify the Borrower and the Lenders that no
qualifying Person has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and LC Issuer directly, until such
time as the Majority Lenders appoint a successor Administrative Agent as provided for above in this
Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers, privileges and duties
of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article
and Section 10.4 shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as LC Issuer. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring LC Issuer, (b) the retiring LC Issuer
shall be discharged from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (c) the successor LC Issuer shall issue letters of credit in substitution
for the Letters of Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring LC Issuer to effectively assume the obligations of the
retiring LC Issuer with respect to such Letters of Credit.



     Section 9.7. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
LC Issuer acknowledges that it has, independently and without reliance upon the Administrative
Agent or any other Lender or any of their Related Parties and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender and LC Issuer also acknowledges that it will, independently and
without reliance upon Administrative Agent or any other Lender or any of their Related Parties and
based on such documents and information as it shall from time to time deem appropriate, continue to
make its own decisions in taking or not
taking action under or based upon this Agreement, any other Loan Document or any related
agreement or any document furnished hereunder or thereunder.



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     Section 9.8. No Other Duties, Etc. Anything herein to the contrary notwithstanding,
none of Administrative Agent, Syndication Agent or Documentation Agent shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan Documents, except in its
capacity, as applicable, as Administrative Agent, Syndication Agent or Documentation Agent, or as a
Lender or an LC Issuer hereunder.



     Section 9.9. 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 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 such Persons 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 9.10. 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, and for
the avoidance of doubt, 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



59









 







than the Obligations. Borrower expressly consents
to the foregoing arrangements, subject to Section 10.11. 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 Governmental Authority to be paid on account of the possession of such
funds prior to such recovery.



     Section 9.11. 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.



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 amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by Borrower or PAA therefrom
shall be effective unless in writing signed by the Majority Lenders, Borrower and PAA, and
acknowledged by the Administrative Agent, and each
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or consent shall:



          (i) waive any condition set forth in Section 4.1 without the written consent of each Lender
(provided Administrative Agent may in its discretion withdraw any request it has made under Section
4.1(i) to the extent such request does not pertain to an item expressly covered by any other
subsection of Section 4.1);




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          (ii) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 8.1) without the written consent of such Lender;




          (iii) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any other Loan Document without the written consent of each Lender
directly affected thereby;




          (iv) reduce the principal of, or the rate of interest specified herein on, any Loan or LC
Borrowing, or (subject to clause (iii) of the proviso at the end of this Section 10.1) any fees or
other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Margin that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder without the written consent of each Lender directly affected thereby;
provided, however, and for the avoidance of doubt, that only the consent of the
Majority Lenders shall be necessary (A) to amend the definition of “Default Rate” or to waive any
obligation of Borrower to pay interest or Letter of Credit Fees at the Default Rate or (B) to amend
any financial covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or LC Borrowing or to reduce any fee
payable hereunder;




          (v) change Section 9.10 or Section 8.2 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender; or




          (vi) change any provision of this Section or the definition of “Majority Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; or




          (vii) except as expressly provided herein or in any other Loan Document, without the written
consent of each Lender, release (A) Borrower from its obligation to pay such Lender’s Note or PAA
from its obligations under the PAA Guaranty, (B) any Collateral or (C) Borrower from the negative
pledge covenant set forth in Section 7.5 hereof.



and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by an LC Issuer in addition to the Lenders required above, affect the rights or
duties of an LC Issuer under this Agreement or any LC Application relating to any Letter of Credit
issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and
signed by the Administrative Agent, in addition to the Lenders required above, affect the rights or
duties of Administrative Agent under this Agreement or any other Loan Document; and (iii) the Fee
Letter
may be amended, or rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder or any other Loan
Document, nor shall a Defaulting Lender’s vote or status as a Lender be required in determining
majority, unanimity or other condition or effect of any vote, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.




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     (b) Acknowledgments and Admissions. Each of Borrower and PAA 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 or PAA with respect to any Loan Document or the transactions
contemplated thereby, (iii) the relationship pursuant to the Loan Documents between Borrower and
PAA, on one hand, and each Lender Party, on the other hand, is and shall be solely that of debtor
and creditor, respectively, and (iv) no partnership or joint venture exists with respect to the
Loan Documents between Borrower or PAA 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 Section 10.5 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 Representations, Warranties and Agreements; Cumulative
Nature. Each of Borrower’s and PAA’s 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. Such representations and warranties have been or will be
relied upon by the Administrative Agent and each Lender, regardless of any investigation made by
Administrative Agent or any Lender or on their behalf and notwithstanding that Administrative Agent
or any Lender may have had notice or knowledge of any Default at the time of any credit extension
hereunder. 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; Effectiveness; Electronic Communications.



     (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone or otherwise (and except as provided in subsection (b)
below), all notices and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or registered mail or sent by
telecopier or other electronic transmission as follows, and all notices and other



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communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:



          (i) if to Borrower, PAA, Administrative Agent or LC Issuer, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule 10.3; and




          (ii) if to any other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire if it has been delivered to the
party sending such notice or communication; otherwise to such address reasonably believed to be
correct by the sending party.




     Notices sent by hand or overnight courier service, or mailed by certified or registered mail,
shall be deemed to have been given when received; notices sent by telecopier shall be deemed to
have been given when received (except that, if not given during normal business hours for the
recipient, shall be deemed to have been received at the opening of business on the next business
day for the recipient), with confirmation of the transmittal of any such telecopied notice
evidencing receipt thereof. Notices delivered through electronic communications to the extent
provided in subsection (b) below, shall be effective as provided in such subsection (b).



     (b) Electronic Communications. Notices and other communications to the Lenders and LC
Issuer hereunder may be delivered or furnished by electronic communication (including e-mail and
Internet or intranet websites) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or LC Issuer pursuant
to Article II if such Lender or LC Issuer, as applicable, has notified Administrative Agent that it
is incapable of receiving notices under such Article by electronic communication. Administrative
Agent, Borrower or PAA may, in its discretion, agree to accept notices and other communications to
it hereunder by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or communications.



     Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to
an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the
intended recipient (such as by the “return receipt requested” function, as available, return e-mail
or other written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such
notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at its
e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.



     (c) Change of Address, Etc. Borrower, PAA, Administrative Agent and LC Issuer may
change its address, telecopier, e-mail address or telephone number for notices and other
communications hereunder by notice to the other parties hereto. Each other Lender may change its
address, telecopier, e-mail address or telephone number for notices and other communications
hereunder by notice to the Borrower, Administrative Agent and LC Issuer.



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     (d) Reliance by Administrative Agent, LC Issuer and Lenders. The Lender Parties shall
be entitled to rely and act upon any notices each of them reasonably believes is purportedly given
by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof.
Borrower shall indemnify the Lender Parties from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice it reasonably believes is purportedly
given by or on behalf of Borrower, as provided in Section 10.4(b). All telephonic notices to and
other telephonic communications with Administrative Agent may be recorded by Administrative Agent,
and each of the parties hereto hereby consents to such recording.



     Section 10.4. Expenses; Indemnity; Damage Waiver.



     (a) Payment of Expenses. Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by Administrative Agent and their respective Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
preparation, negotiation, execution, delivery and administration of this Agreement and the other
Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the LC Issuer in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all out-of-pocket expenses incurred by Administrative Agent, any Lender or LC Issuer
(including the fees, charges and disbursements of any counsel for Administrative Agent, any Lender
or LC Issuer and all fees and time charges for attorneys who may be employees of Administrative
Agent or LC Issuer), in connection with the enforcement or protection of its rights under this
Agreement and the other Loan Documents, including its rights under this Section and out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect of such Loans or
Letters of Credit.



     (b) Indemnity. Borrower agrees to indemnify each Lender Party 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). In the case of an investigation, litigation
or proceeding to which the indemnity in this Section 10.4 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought by Borrower and/or
PAA, any of its equity holders, Affiliates or creditors or a Lender Party or any third party and
whether or not a Lender Party is otherwise a party thereto.



     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



64









 







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 (i) is proximately
caused by its own (A) individual gross negligence or willful misconduct, as determined in a final
judgment, or (B) material breach of any of its obligations hereunder or under any other Loan
Documents, as determined in a final judgment or (ii) arises by reason of a claim (A) by any one or
more Lender Parties against any one or more other Lender Parties or (B) by an equity-interest owner
of any Lender Party against any one or more Lender Parties, so long as in either such case, such
claim is not proximately caused solely by the breach hereunder or under any other Loan Document by
Borrower, PAA or their Affiliates. If any Person (including Borrower, PAA or any of their
Affiliates) ever alleges gross negligence or willful misconduct pursuant to the preceding clause
(i)(A) (but, for the avoidance of doubt, not with respect to an allegation of a material breach
pursuant to the preceding clause (i)(B)) by any Lender Party, the 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. So long as no Default has occurred and is continuing and Borrower is financially solvent,
no Lender Party may settle any claim to be indemnified without the consent of Borrower, such
consent not to be unreasonably withheld; provided that Borrower may not reasonably withhold consent
to any settlement that a Lender Party proposes, if Borrower does not have the financial ability to
pay all its obligations outstanding and asserted against Borrower at that time, including the
maximum potential claims against the Lender Party to be indemnified pursuant to this Section 10.4.



     (c) Reimbursement by Lenders. To the extent that any amounts required to be paid to
Administrative Agent, LC Issuer or any Related Party of any of the foregoing pursuant to subsection
(a) or (b) of this Section 10.4 are not indefeasibly paid, each Lender severally agrees to pay to
Administrative Agent, LC Issuer or such Related Party, as the case may be, such Lender’s Percentage
Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against Administrative Agent, or LC Issuer in its capacity as such, or against any such Related
Party of any of the foregoing acting for Administrative Agent or LC Issuer in
connection with such capacity. The obligations of the Lenders under this subsection (c) shall
be several, as provided in the next to last sentence of Section 2.3 with respect to the several
obligations of Lenders to make Loans.



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no party hereto or Related Party of any party hereto shall assert, and hereby
waives, any claim against each other party hereto and its Related Parties (including, as
applicable, each indemnitee referred to in subsection (b) above), on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or
any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby,
any Loan or Letter of Credit or the use of the proceeds thereof. No indemnitee referred



65









 







to in subsection (b) above shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through telecommunications, electronic or
other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than as a result of such
indemnitee’s gross negligence, willful misconduct or material breach of any of its obligations
under any Loan Document.



     (e) 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.



     (f) Payments. All amounts due under this Section shall be payable not later than ten
Business Days after demand therefor and Borrower’s receipt of reasonably detailed invoices or
statements related thereto.



     (g) Survival. The agreements in this Section shall survive the resignation of
Administrative Agent and the LC Issuer, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the other Obligations.



     Section 10.5. Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither Borrower nor PAA may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the Administrative
Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of
subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other attempted assignment
or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Affiliates of
the Administrative Agent, the LC Issuer and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.



     (b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this subsection (b),
participations in LC Obligations) at the time owing to it); provided that:



     (i) except (A) in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitments, if any, and the Loans at the time owing to it, or (B) in the case of an
assignment to a Lender and the assigning Lender retains a Commitment of at least $5,000,000, the
aggregate amount of the Commitment (which for this purpose includes Loans




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outstanding thereunder)
or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade
Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than
$5,000,000, unless the Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or
delayed);




          (ii) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the
Commitment assigned;




          (iii) any assignment of a Commitment must be approved by the Administrative Agent and LC
Issuer unless the Person that is the proposed assignee is itself a Lender (whether or not the
proposed assignee would otherwise qualify as an Eligible Assignee); and




          (iv) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee payable by such assignor
Lender (and not at Borrower’s expense) of $3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.2, 3.3, 3.7 and 3.8 and Section 10.4 with respect to facts
and circumstances occurring prior to the effective date of such assignment. Upon request, Borrower
(at its expense) shall execute and deliver a Note to the assignee Lender against receipt by
Borrower of the canceled original Note of the assignor, if its entire Commitment was assigned, or
evidence that such assignor’s Note is marked to reflect its reduction.. Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply with this subsection
shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.



     Each Eligible Assignee of a US 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, must (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).




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain at its Applicable Lending Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the



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Lenders, and
the Commitments of, and the principal amounts of the Loans and LC Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the “Register”). The entries in the
Register shall be conclusive, absent manifest error, and Borrower, Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof,
and its correspondingly recorded Commitment, as a Lender hereunder owning such Commitment for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by Borrower and the LC Issuer at any reasonable time and from time to time
upon reasonable prior notice. In addition, at any time (i) requested by the Borrower or (ii) that
a request for a consent for a material or substantive change to the Loan Documents is pending, the
Borrower or any Lender wishing to consult with other Lenders in connection therewith, as
applicable, may request and receive from the Administrative Agent a copy of the Register.




     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
Borrower or Administrative Agent, sell participations to any Person (other than a natural person or
the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”) in all or
a portion of the Obligations owing to such Lender and such Lender’s rights related thereto and such
Lender’s obligations under this Agreement (including all or a portion of its Commitment and/or the
Obligations (including such Lender’s participations in LC Obligations) owing to it);
provided that (i) such Lender’s obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the LC Issuer
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement.



     Any agreement or instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.1 that directly affects such Participant. Subject to subsection (e) of this Section,
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.2, 3.3, 3.7
and 3.8 and the obligations imposed by such Sections, and shall be subject to replacement pursuant
to Section 3.8, to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.09 as though it were a Lender,
provided such Participant agrees to be subject to Section 9.10 as though it were a Lender.



     (e) Limitation upon Participant Rights. A Participant shall not be entitled to receive any
greater payment under Sections 3.2 through 3.8 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with Borrower’s prior
written consent, which consent sets forth an express waiver of the limitation on Sections 3.2
through 3.8 which are set forth in this subsection.



     (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Notes, if any) to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a



68









 







Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute (or, except as to the Federal Reserve Bank, permit the
substitution of) any such pledgee or assignee for such Lender as a party hereto, and all costs,
fees and expenses related to any such pledge shall be for the sole account of such Lender.



     (g) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which shall be of the same legal
effect, validity or enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in any applicable law,
including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



     (h) Resignation as LC Issuer after Assignment. Notwithstanding anything to the contrary
contained herein, if at any time Bank of America assigns all of its Commitments and Loans pursuant
to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to Borrower and the Lenders,
resign as LC Issuer. In the event of any such resignation as LC Issuer, the Borrower shall be
entitled to appoint from among the Lenders successor LC Issuers hereunder; provided,
however, that no failure by Borrower to appoint any such successor shall affect the
resignation of Bank of America as LC Issuer. If Bank of America resigns as LC Issuer, it shall
retain all the rights and obligations of the LC Issuer hereunder with respect to all Letters of
Credit outstanding as of the effective date of its resignation as LC Issuer and all LC Obligations
with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund
risk participations in Unreimbursed Amounts pursuant to Section 2.10(c)).



     (i) Lost Notes. 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 principal amount of such Lender’s then Commitment, or if no Commitment is in effect, the
outstanding principal amount owed to such Lender and otherwise of like tenor.



     Section 10.6. Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent, the Lenders and the LC Issuer (for itself and each of its Affiliates, and its and their
Related Parties) agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’
respective partners, directors, officers, employees, agents, advisors and representatives (it being
understood that the Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information confidential and will agree to
maintain such confidences), (b) to the extent requested or required by applicable laws or regulations or by any
subpoena or similar legal process, (c) subject to this Section 10.6, to any other party hereto, (d)
in connection with the exercise of any remedies hereunder or under any other Loan Document or any
action or proceeding relating to this Agreement or any other Loan Document or in connection with
any Default or anticipated Default, the enforcement of rights hereunder or thereunder, (e) subject
to an agreement containing provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any



69









 







actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to, and requested by, Borrower and its
obligations, (f) with the consent of the Borrower, or (g) to the extent such Information becomes
publicly available other than as a result of a breach of this Section, or becomes available to
Administrative Agent, any Lender, LC Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower.



     For purposes of this Section, “Information” means all information received from the
Borrower, PAA or any Subsidiary relating to Borrower, PAA or any Subsidiary, or any Affiliate of
any of them, or any of their respective businesses, other than any such information that is
available to Administrative Agent, any Lender or the LC Issuer on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary, provided that, in the case of information
received from the Borrowers or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



     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. Each of
Borrower and PAA hereby agrees that any legal action or proceeding against Borrower and/or PAA 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, each of Borrower and PAA accepts
and consents for itself and in respect to its property, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts. Each of Borrower and PAA 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, each of Borrower and PAA hereby irrevocably designates and appoints
Corporation Service Company, 80 State Street, Albany, New York 12207, as agent of each of Borrower
and PAA to receive service of all process brought against Borrower or PAA with respect to any such
proceeding in any such court in New York, such service being hereby acknowledged by each of
Borrower and PAA 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 or PAA at its
address set forth below, but the failure of Borrower or PAA to receive such copies shall not affect
in any way the service of such process as aforesaid. Each of Borrower and PAA 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



70









 







limit the right of Lender Parties to bring
proceedings against Borrower or PAA in the courts of any other jurisdiction. If for any reason
Corporation Service Company shall resign or otherwise cease to act as Borrower’s or PAA’s agent,
each of Borrower and PAA hereby irrevocably agrees to (a) immediately designate and appoint a new
agent acceptable to Administrative Agent to serve 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, Borrower, PAA 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 Borrower, PAA 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, Borrower and PAA (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



71









 







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



     Section 10.10. Termination; Limited Survival; Payments Set Aside. 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 Borrower or PAA in any Loan Document, any
Obligations under Sections 3.2 through 3.7, 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.



     To the extent that any payment by or on behalf of Borrower or PAA is made to Administrative
Agent, the LC Issuer or any Lender, or Administrative Agent, the LC Issuer or any Lender exercises
its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by Administrative Agent, the LC
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any debtor relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the LC Issuer severally agrees to pay to Administrative Agent
upon demand its applicable share (without duplication) of any amount so recovered from or repaid by
Administrative Agent, plus interest thereon from the date of such demand to the date such payment
is made at a rate per annum equal to the Federal Funds Rate from time to time in effect, in the
applicable currency of such recovery or payment. The obligations of the Lenders and the LC Issuer
under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and
the termination of this Agreement.



     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



72









 







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. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     Section 10.14. USA PATRIOT Act Notice. Each Lender that is subject to the Act (as
hereinafter defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies Borrower and Parent that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56 (signed into law November 26, 2001)) (the “Act”), it is required to obtain, verify
and record information that identifies the Borrower and Parent, which information includes the name
and address of Borrower and Parent and other information that will allow such Lender or
Administrative Agent, as applicable, to identify Borrower and Parent in accordance with the Act.
Borrower shall, promptly following a
request by Administrative Agent or any Lender, provide all documentation and other information
that Administrative Agent or such Lender requests in order to comply with its ongoing obligations
under applicable “know your customer” and anti-money laundering rules and regulations, including
the Act.



     Section 10.15. Restated Credit Facility. In connection with the amendment and
restatement of the Existing Agreement pursuant hereto, Borrower, Administrative Agent and Lenders
shall as of the Closing Date make adjustments to the outstanding principal amount of “Loans” under
the Existing Agreement (as such term is defined therein) (but not any interest accrued thereon
prior to the Closing Date), including the borrowing of additional Loans hereunder and the repayment
of Loans plus all applicable accrued interest, fees and expenses as shall be necessary to provide
for Loans by each Lender in the amount of its Percentage Share of all Loans as of the Closing Date,
but in no event shall such adjustment of any Eurodollar Loans (i) constitute a payment or
prepayment of all or a portion of any Eurodollar Loans or (ii) entitle any Lender to any
reimbursement under Section 3.7 hereof, and each Lender shall be deemed to have made an assignment
of its outstanding Loans under the Existing Agreement, and assumed outstanding Loans of other
Lenders under the Existing Agreement as may be necessary to effect the foregoing. Borrower states
and acknowledges that this Agreement is entered into by it in amendment and restatement of the
Existing Agreement. Borrower further states, acknowledges



73









 







and agrees that the preceding sentence
does not and shall not alter or otherwise modify in any regard, directly or indirectly, expressly
or impliedly or otherwise, the terms, provisions and conditions expressly set forth in, and
contemplated by, this Agreement, or the transactions contemplated hereby, which in each case shall
be governed solely by the terms, provisions and conditions of this Agreement and the other Loan
Documents without regard to this Section 10.15.



[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 MARKETING, L.P.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	PLAINS MARKETING GP INC.,	 	 
	 

	 	 	 	its general partner	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Charles Kingswell-Smith	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Charles Kingswell-Smith	 	 
	 

	 	 	 	Title: Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	Address for Borrower:	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	333 Clay Street, Suite 1600	 	 
	 

	 	 	 	Houston, Texas 77002	 	 
	 

	 	 	 	Attention: Charles Kingswell-Smith	 	 
	 

	 	 	 	Telephone: (713) 993-5318	 	 
	 

	 	 	 	Fax: (713) 646-4572	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	PAA Website: www.paalp.com	 	 






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	 	BANK OF AMERICA, N.A.,

Administrative Agent

 	 
	 	By:  	 /s/
Bridgett J. Manduk	 
	 	 	Name:  	 Bridgett J. Manduk	 
	 	 	Title:   	 Assistant Vice President	 
	 



	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

LC Issuer and a Lender

 	 
	 	By:  	 /s/
Christen A. Lacey	 
	 	 	Christen A. Lacey, Principal 	 
	 	 	 	 
	 




76









 





	 	 	 	 	 
	 	FORTIS CAPITAL CORP.,

as Documentation Agent and a Lender

 	 
	 	By:  	 /s/
Chad Clark	 
	 	 	Name:  	 Chad Clark	 
	 	 	Title:  	 Director	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Suzanne Durney	 
	 	 	Name:  	 Suzanne Durney	 
	 	 	Title:  	 Director	 
	 




77









 





	 	 	 	 	 
	 	BNP PARIBAS, as Syndication Agent and a Lender

 	 
	 	By:  	 /s/
Edward K. Chin	 
	 	 	Name:  	 Edward K. Chin	 
	 	 	Title:  	 Managing Director	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Jordan Nenoff	 
	 	 	Name:  	 Jordan Nenoff	 
	 	 	Title:  	 Director	 
	 




78









 





	 	 	 	 	 
	 	SOCIETE GENERALE, Lender

 	 
	 	By:  	 /s/
Chung-Taek Oh	 
	 	 	Name:  	 Chung-Taek Oh	 
	 	 	Title:  	 Vice President	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Barbara Paulsen	 
	 	 	Name:  	 Barbara Paulsen	 
	 	 	Title:  	 Managing Director	 
	 




79









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., Lender

 	 
	 	By:  	 /s/
Cristiana Freeman	 
	 	 	Name:  	 Cristiana Freeman	 
	 	 	Title:  	 Vice President	 
	 




80









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., Lender

 	 
	 	By:  	 /s/
Terence D’Souza	 
	 	 	Name:  	 Terence D’Souza	 
	 	 	Title:  	 Vice President	 
	 




81









 





	 	 	 	 	 
	 	DNB NOR BANK ASA, Lender

 	 
	 	By:  	 /s/
Philip F. Kurpiewski	 
	 	 	Name:  

Title:	 Philip F. Kurpiewski
 Senior Vice
President	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Thomas Tangen	 
	 	 	Name:  	 Thomas Tangen	 
	 	 	Title:  	 First Vice President	 
	 




82









 





	 	 	 	 	 
	 	WACHOVIA BANK,

NATIONAL ASSOCIATION, Lender

 	 
	 	By:  	 /s/
Shawn Young	 
	 	 	Name:  	 Shawn Young	 
	 	 	Title:  	 Director	 
	 




83









 





	 	 	 	 	 
	 	UBS LOAN FINANCE LLC, Lender

 	 
	 	By:  	 /s/
Richard L. Tavrow	 
	 	 	Name:  	 Richard L. Tavrow	 
	 	 	Title:  	 Director, Banking Products Services, US	 
	 



	 	 	 	 	 
	 	 	 
	 	By:  	
 /s/ Irja R. Otsa	 
	 	 	Name:  	 Irja R. Otsa	 
	 	 	Title:  	 Associate Director, Banking Products
 Services, US	 
	 




84









 





SCHEDULE I




COMMITMENT FEES AND APPLICABLE MARGIN




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin	 	 
	Applicable	 	Applicable Margin	 	Eurodollar Loans	 	Commitment
	Rating Level	 	Base Rate Loans	 	and LC Fee Rate	 	Fee
	Level I

	 	 	0.500	%	 	 	1.250	%	 	 	0.150	%
	Level II

	 	 	0.750	%	 	 	1.500	%	 	 	0.175	%
	Level III

	 	 	1.000	%	 	 	1.750	%	 	 	0.200	%
	Level IV

	 	 	1.500	%	 	 	2.250	%	 	 	0.250	%
	

Level V

	 	 	
2.000	
%	 	 	
2.750	
%	 	 	
0.300	
%