Exhibit 1.1
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
$500,000,000 5.75% Senior Notes due 2020
UNDERWRITING AGREEMENT
September 1, 2009
Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
SunTrust Robinson Humphrey, Inc.
UBS Securities LLC
DnB NOR Markets, Inc.
Mitsubishi UFJ Securities (USA), Inc.
SG Americas Securities, LLC
BMO Capital Markets Corp.
Daiwa Securities America Inc.
ING Financial Markets LLC
Scotia Capital (USA) Inc.
U.S. Bancorp Investments, Inc.
c/o Wells Fargo Securities, LLC
301 S. College Street
Charlotte, NC 28288
Ladies and Gentlemen:
Plains All American Pipeline, L.P., a Delaware limited partnership (the “
Partnership
”), and
PAA Finance Corp., a Delaware corporation (“
PAA Finance
,” and together with the Partnership, the
“
Issuers
”), propose to issue and sell to the several underwriters named in
Schedule I
hereto (the “
Underwriters
”), for whom Wells Fargo Securities, LLC, Citigroup Global Markets Inc.,
SunTrust Robinson Humphrey, Inc. and UBS Securities LLC are acting as the representatives (the
“
Representatives
”), $500,000,000 aggregate principal amount of 5.75% Senior Notes due January 15,
2020 (the “
Notes
”). The Notes are to be issued under an indenture dated as of September 25, 2002
(the “
Base Indenture
”), among the Issuers and U.S. Bank National Association, as successor trustee
(the “
Trustee
”), as amended by the Seventeenth Supplemental Indenture, to be dated as of September
4, 2009, among the Issuers, the Subsidiary Guarantors (as defined herein) and the Trustee (the Base
Indenture, as so amended, the “
Indenture
”), and will be guaranteed on an unsecured basis by each of
the Subsidiary Guarantors (the “
Guarantees
”).
PAA GP LLC, a Delaware limited liability company (the “
General Partner
”), is the general
partner of the Partnership. Plains AAP, L.P., a Delaware limited partnership (“
Plains AAP
”), owns
a 100% membership interest in the General Partner. Plains All American GP LLC, a Delaware limited
liability company (“
GP LLC
” and collectively with the General Partner and Plains AAP, the “
GP
Entities
”), is the general partner of Plains AAP.
The subsidiaries listed on
Schedule III
hereto are referred to herein as the “
Domestic
Subsidiary Guarantors
.” The subsidiaries listed on
Schedule IV
hereto are referred to
herein as the “
Canadian Subsidiary Guarantors
.” The subsidiaries listed on
Schedule V
hereto are referred to herein as the “
Non-Guarantor Subsidiaries
.” The Domestic Subsidiary
Guarantors and the Canadian Subsidiary Guarantors are collectively referred to herein as the
“Subsidiary Guarantors
.” The Non-Guarantor Subsidiaries, the Subsidiary Guarantors and PAA Finance
are collectively referred to herein as the “
Subsidiaries
.” The Issuers and the Subsidiary
Guarantors are collectively referred to herein as the “
Plains Parties
.” The Plains Parties, the GP
Entities, the Non-Guarantor Subsidiaries and PAA/Vulcan Gas Storage, LLC, a Delaware limited
liability company (the “
Joint Venture
”), are collectively referred to herein as the “
Plains
Entities
.”
This is to confirm the agreement among the Plains Parties and the Underwriters concerning the
several purchases of the Notes by the Underwriters.
1.
Representations and Warranties of the Plains Parties
. The Plains Parties, jointly and
severally, represent and warrant to the Underwriters that:
(a) A registration statement on Form S-3 relating to the Notes (File No. 333-155671)
(i) has been prepared by the Issuers in conformity with the requirements of the Securities
Act of 1933, as amended (the “
Securities Act
”), and the rules and regulations (the “
Rules
and Regulations
”) of the Securities and Exchange Commission (the “
Commission
”) thereunder;
(ii) has been filed with the Commission under the Securities Act; and (iii) is effective
under the Securities Act. Copies of such registration statement and any amendment thereto
have been delivered by the Issuers to the Representatives. As used in this Agreement:
(i) “
Applicable Time
” means 3:25 p.m., New York City time, on September 1,
2009, which the Underwriters have informed the Issuers and their counsel is a time
prior to the first sale of the Notes;
(ii) “
Base Prospectus
” means the base prospectus included in the Registration
Statement at the Applicable Time.
(iii) “
Effective Date
” means any date as of which any part of such registration
statement relating to the Notes became, or is deemed to have become, effective under
the Securities Act in accordance with the Rules and Regulations;
(iv) “
Issuer Free Writing Prospectus
” means each “free writing prospectus” (as
defined in Rule 405 of the Rules and Regulations) or “issuer free writing
prospectus” (as defined in Rule 433 of the Rules and Regulations)
prepared by or on behalf of the Issuers or used or referred to by the Issuers
in connection with the offering of the Notes;
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(v) “
Preliminary Prospectus
” means any preliminary prospectus relating to the
Notes included in such registration statement or filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations, including the Base Prospectus and any
preliminary prospectus supplement thereto relating to the Notes;
(vi) “
Pricing Disclosure Package
” means, as of the Applicable Time, (A) the
most recent Preliminary Prospectus, (B) the Issuer Free Writing Prospectus attached
as
Schedule II
hereto, and (C) the other Issuer Free Writing Prospectuses
identified on
Schedule II
hereto, other than a road show that is an Issuer
Free Writing Prospectus under Rule 433 of the Rules and Regulations;
(vii) “
Prospectus
” means the final prospectus relating to the Notes, including
the Base Prospectus and any prospectus supplement thereto relating to the Notes, as
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations; and
(viii) “
Registration Statement
” means the registration statement on Form S-3
(File No. 333-155671), as amended as of the Effective Date, including any
Preliminary Prospectus or the Prospectus and all exhibits to such registration
statement.
Any reference to the Registration Statement, any Preliminary Prospectus, the Pricing
Disclosure Package or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form S-3 under the Securities Act as of the date of
such Registration Statement, Preliminary Prospectus or Prospectus, as the case may be, or in the
case of the Pricing Disclosure Package, as of the Applicable Time. Any reference to the “
most
recent Preliminary Prospectus
” shall be deemed to refer to the latest Preliminary Prospectus
included in the Registration Statement or filed pursuant to Rule 424(b) of the Rules and
Regulations prior to or on the date hereof (including, for purposes hereof, any documents
incorporated by reference therein prior to or on the date hereof). Any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any document filed under the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), after the date of such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be.
Any reference to any amendment to the Registration Statement shall be deemed to include any
periodic report of the Partnership filed with the Commission pursuant to Section 13(a) or 15(d) of
the Exchange Act after the Effective Date that is incorporated by reference in the Registration
Statement. As used herein, the term “
Incorporated Documents
” means the documents that at the time
are incorporated by reference in the Registration Statement, the Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the
effectiveness of the Registration Statement, and no proceeding for such purpose has been instituted
or, to the Plains Parties’ knowledge,
threatened by the Commission. The Commission has not notified the Issuers of any objection to
the use of the form of the Registration Statement.
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(b)
Form of Documents.
The Registration Statement conformed and will conform in all material
respects on the Effective Date and on the Delivery Date (as defined herein), and any amendment to
the Registration Statement filed after the date hereof will conform in all material respects when
filed, to the applicable requirements of the Securities Act and the Rules and Regulations. The
most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material
respects when filed with the Commission pursuant to Rule 424(b) and on the Delivery Date to the
requirements of the Securities Act and the Rules and Regulations. The Incorporated Documents
conformed and will conform, when filed with the Commission, in all material respects to the
requirements of the Exchange Act or the Securities Act, as applicable, and the rules and
regulations of the Commission thereunder. The Registration Statement and the Prospectus conform in
all material respects to the requirements applicable to them under the Trust Indenture Act of 1939,
as amended (the “
Trust Indenture Act
”).
(c)
Registration Statement
. The Registration Statement did not, as of its most recent
Effective Date, contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
provided
that no representation or warranty is made as to information contained in or
omitted from the Registration Statement in reliance upon and in conformity with written information
furnished to the Issuers through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein, which information is specified in Section 12.
(d)
Prospectus
. The Prospectus will not, as of its date and on the Delivery Date, include an
untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading;
provided
that no representation or warranty is made as to information contained in or
omitted from the Prospectus in reliance upon and in conformity with written information furnished
to the Issuers through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information is specified in Section 12.
(e)
Documents Incorporated by Reference
. The Incorporated Documents, when filed with the
Commission, did not and will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(f)
Pricing Disclosure Package
. The Pricing Disclosure Package did not, as of the Applicable
Time, include an untrue statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading;
provided
that no representation or warranty is made as to information
contained in or omitted from the Pricing Disclosure Package in reliance upon and in conformity with
written information furnished to the Issuers through the Representatives by or on behalf of any
Underwriter specifically for inclusion therein, which information is specified in Section 12.
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(g)
Issuer Free Writing Prospectus and Pricing Disclosure Package
. Each Issuer Free Writing
Prospectus (including, without limitation, any road show that is a free writing prospectus under
Rule 433 of the Rules and Regulations), when considered together with the Pricing Disclosure
Package as of the Applicable Time, did not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided
, that no representation
or warranty is made as to information contained in or omitted from such Issuer Free Writing
Prospectus in reliance upon and in conformity with written information furnished to the Issuers
through the Representatives by or on behalf of any Underwriter specifically for inclusion therein,
which information is specified in Section 12.
(h)
Each Issuer Free Writing Prospectus
. Each Issuer Free Writing Prospectus conformed or
will conform in all material respects to the requirements of the Securities Act and the Rules and
Regulations on the date of first use, and the Issuers have complied with any filing requirements
applicable to such Issuer Free Writing Prospectus pursuant to the Rules and Regulations. The
Issuers have not made any offer relating to the Notes that would constitute an Issuer Free Writing
Prospectus without the prior written consent of the Representatives. The Issuers have retained in
accordance with the Rules and Regulations all Issuer Free Writing Prospectuses that were not
required to be filed pursuant to the Rules and Regulations. The Issuers have taken all actions
necessary so that any road show (as defined in Rule 433 of the Rules and Regulations) in connection
with the offering of the Notes will not be required to be filed pursuant to the Rules and
Regulations.
(i)
Not an Ineligible Issuer
. At (i) the time of initial filing of the Registration Statement
and (ii) the earliest time after the initial filing of the Registration Statement that the Issuers
or another offering participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) under
the Securities Act) of the Notes, neither of the Issuers was an “ineligible issuer,” as defined in
Rule 405 under the Securities Act.
(j)
Formation and Qualification of Certain Entities
. Each of the Plains Parties, the GP
Entities and the Joint Venture has been duly formed or incorporated and is validly existing in good
standing as a limited partnership, limited liability company, corporation or unlimited liability
company under the laws of its respective jurisdiction of formation or incorporation with full
corporate, partnership, limited liability company or unlimited liability company power and
authority, as the case may be, to own or lease its properties and to conduct its business, in each
case in all material respects. Each of the Plains Parties, the GP Entities and the Joint Venture
is duly registered or qualified as a foreign corporation, limited partnership, limited liability
company or unlimited liability company, as the case may be, for the transaction of business under
the laws of each jurisdiction (as set forth on
Exhibit A
to this Agreement) in which the
character of the business conducted by it or the nature or location of the properties owned or
leased by it makes such registration or qualification necessary, except where the failure so to
register or qualify would not have a material adverse effect upon the condition (financial or
other), business, prospects, properties, net worth or results of operations of the Plains Entities,
taken as a whole.
5
(k)
General Partners
. Each Plains Entity that serves as a general partner of another Plains
Entity has full corporate or limited liability company, as the case may be, to serve as general
partner of such Plains Entity, in each case in all material respects.
(l)
Ownership of the General Partner Interest in the Partnership, the General Partner and
Plains AAP
. The GP Entities hold the general partner and membership interests described in the
Registration Statement; all of such interests have been duly authorized and validly issued in
accordance with their respective limited partnership or limited liability company agreement, as
applicable, and all the membership interests in the General Partner are fully paid (to the extent
required under the Limited Liability Company Agreement of the General Partner (as the same may be
amended or restated prior to the Delivery Date, such agreement being referred to herein as the
“
General Partner LLC Agreement
”) and nonassessable (except as such assessability may be affected by
Section 18-607 and 18-804 of the Delaware Limited Liability Company Act (the “
Delaware LLC Act
”));
and such general partner and membership interests held by the GP Entities are owned free and clear
of all liens, encumbrances, security interests, equities, charges or claims (“
Liens
”), except as
disclosed in the Pricing Disclosure Package and the Prospectus and except such as could not
reasonably be expected to result in a change of control of the Partnership or have a material
adverse effect upon the ability of the Plains Entities considered as a whole to conduct their
businesses as currently conducted and as contemplated by the Pricing Disclosure Package and the
Prospectus to be conducted.
(m)
Ownership of Subsidiaries and the Joint Venture
. All of the outstanding shares of capital
stock or other equity interests of each Subsidiary and the Joint Venture (a) have been duly
authorized and validly issued (in accordance with the agreement or certificate of limited
partnership, limited liability company agreement, certificate of formation, certificate or articles
of incorporation, bylaws or other similar organizational documents (in each case as in effect on
the date hereof and as the same may be amended or restated prior to the Delivery Date) (the
“
Organizational Documents
”) of such Subsidiary or the Joint Venture), are fully paid (in the case
of an interest in a limited partnership or limited liability company, to the extent required under
the Organizational Documents of such Subsidiary or the Joint Venture) and nonassessable (except (i)
in the case of an interest in a Delaware limited partnership or Delaware limited liability company,
as such nonassessability may be affected by Section 17-607 and 17-804 of the Delaware Revised
Uniform Limited Partnership Act (the “
Delaware LP Act
”) or Section 18-607 and 18-804 of the
Delaware Limited Liability Company Act (the “
Delaware LLC Act
”), as applicable, (ii) in the case of
an interest in a limited partnership or limited liability company formed under the laws of another
domestic state, as such nonassessability may be affected by similar provisions of such state’s
limited partnership or limited liability company statute, as applicable, and (iii) in the case of
an interest in an entity formed under the laws of a foreign jurisdiction, as such nonassessability
may be affected by similar provisions of such jurisdiction’s corporate, partnership or limited
liability company statute, if any, as applicable) and (b) except for a 50% membership interest in
the Joint Venture owned by Vulcan Gas Storage LLC (“
Vulcan
”) as of the date of this Agreement and a
25% membership interest in SLC Pipeline owned by an affiliate of Holly Energy Partners-Operating,
L.P., are owned, directly or indirectly, by the Partnership, free and clear of all Liens. Subject
to the consummation of the transactions contemplated by the Membership Interest Purchase Agreement
(the “MIPA”), by and between Vulcan and Plains Marketing, L.P., a Texas limited partnership
(“
Plains Marketing
”), dated
August 27, 2009, at the closing of such transactions, the Plains Parties will own, directly or
indirectly, all of the ownership interests in the Joint Venture.
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(n)
Majority Owned Subsidiaries
. The Partnership has no direct or indirect majority owned
subsidiaries other than (i) CDM Max and Plains Marketing Bondholder, (ii) those disclosed on
Exhibit 21.1 on the Partnership’s Annual Report on Form 10-K filed with the Commission on February
26, 2009 (the “
Form 10-K
”) and (iii) those who would not, considered in the aggregate as a single
subsidiary, constitute a significant subsidiary (as defined in Rule 1-02(w) of Regulation S-X) as
of the year end covered by the Partnership’s Form 10-K. The Issuers have no material independent
assets or operations and the Guarantees of the Subsidiary Guarantors are full and unconditional and
joint and several.
(o)
No Registration Rights
. The offering and sale of the Notes as contemplated by this
Agreement do not give rise to any rights for or relating to the registration of any other
securities of the Issuers, except such rights as have been waived or satisfied.
(p)
Conformity to Description of Notes
. The Notes, when issued and delivered against payment
therefor as provided herein and in the Indenture, the Guarantees and the Indenture will conform in
all material respects to the descriptions thereof contained in the Pricing Disclosure Package and
the Prospectus (and any amendment or supplement thereto).
(q)
Authority
. Each of the Issuers has all requisite power and authority to issue, sell and
deliver the Notes, and each of the Subsidiary Guarantors has all requisite power and authority to
issue and deliver the Guarantees, in accordance with and upon the terms and conditions set forth in
this Agreement, their respective Organizational Documents, the Indenture, the Registration
Statement, the Pricing Disclosure Package and the Prospectus. All action required to be taken by
the Plains Parties or any of their stockholders, partners or members for (i) the due and proper
authorization, execution and delivery of this Agreement and the Indenture, (ii) the authorization,
issuance, sale and delivery of the Notes and the Guarantees and (iii) the consummation of the
transactions contemplated hereby and thereby shall have been duly and validly taken.
(r)
Authorization, Execution and Delivery of Agreement
. This Agreement has been duly and
validly authorized, executed and delivered by or on behalf of the Plains Parties.
(s)
Enforceability of the Indenture
. The execution and delivery of, and the performance by
each of the Plains Parties of their respective obligations under, the Indenture have been duly and
validly authorized by each of the Plains Parties that are parties thereto; the Indenture has been
duly qualified under the Trust Indenture Act and, assuming due authorization, execution and
delivery of the Base Indenture and the Seventeenth Supplemental Indenture thereto by the Trustee,
when such Seventeenth Supplemental Indenture is executed and delivered by each of the Plains
Parties that are parties thereto, will constitute the valid and legally binding agreement of each
of the Plains Parties that are parties thereto, enforceable against each of the Plains Parties that
are parties thereto in accordance with its terms;
provided
that the enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws relating to or affecting creditors’ rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and except as rights to indemnity and contribution thereunder
may be limited by federal or state securities laws.
7
(t)
Valid Issuance of the Notes
. The Notes have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered to and paid for by
the Underwriters, will have been duly executed and delivered by each of the Issuers and will
constitute the valid and legally binding obligations of the Issuers, enforceable against the
Issuers in accordance with their terms and entitled to the benefits of the Indenture;
provided
that the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting
creditors’ rights generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as rights to indemnity
and contribution thereunder may be limited by federal or state securities laws.
(u)
Valid Issuance of the Guarantees
. The Guarantees have been duly authorized by each of the
Subsidiary Guarantors and, when the Notes have been duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be valid and legally
binding obligations of each of the Subsidiary Guarantors, enforceable against each of the
Subsidiary Guarantors in accordance with their terms and will be entitled to the benefits of the
Indenture;
provided
that the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or
affecting creditors’ rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and except as rights to
indemnity and contribution thereunder may be limited by federal or state securities laws.
(v)
Authorization, Execution and Enforceability of Operating Agreements
. The partnership
agreement or limited liability company agreement, as applicable, of each of the Plains Parties has
been duly authorized, executed and delivered by the parties thereto and is a valid and legally
binding agreement of such parties thereto, enforceable against the parties thereto in accordance
with their respective terms; provided, that, with respect to each such agreement, the
enforceability thereof may be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws from time to time in effect affecting creditors’ rights
and remedies generally and by general principles of equity (regardless of whether such principles
are considered in a proceeding in equity or at law).
(w)
No Conflicts or Violations
. None of the offering, issuance and sale by the Issuers of the
Notes or the Subsidiary Guarantors of the Guarantees, the execution, delivery and performance of
this Agreement and the MIPA by the Plains Parties that are parties hereto or thereto, the
consummation of the transactions contemplated by this Agreement and the MIPA, the execution,
delivery and performance of the Indenture by the Plains Parties that are parties thereto or the
consummation of the transactions contemplated thereby (i) conflicts or will conflict with or
constitutes or will constitute a violation of the Organizational Documents of any of the Plains
Parties or the GP Entities, (ii) conflicts or will conflict with or constitutes or will constitute
a breach or violation of, a change of control or a default under (or an event which, with notice or
lapse of time or both, would constitute such an event), any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which any of the Plains Parties
8
or the GP Entities is a party or by which any of them or any of their respective properties
may be bound, (iii) violates or will violate any statute, law or regulation or any order, judgment,
decree or injunction of any court or governmental agency or body directed to any of the Plains
Parties or the GP Entities or any of their properties in a proceeding to which any of them or their
property is a party or (iv) will result in the creation or imposition of any Lien upon any property
or assets of any of the Plains Parties or the GP Entities, which conflicts, breaches, violations or
defaults, in the case of clauses (ii), (iii) or (iv), would have a material adverse effect upon the
condition (financial or other), business, prospects, properties, net worth or results of operations
of the Plains Entities, taken as a whole, or materially impair the ability of the Plains Parties to
consummate the transactions contemplated by this Agreement or the MIPA.
(x)
No Consents
. No consent, approval, authorization, filing with or order of any court,
governmental agency or body (a “
governmental consent
”) is required in connection with the offering,
issuance and sale by the Issuers of the Notes or the Subsidiary Guarantors of the Guarantees, the
execution, delivery and performance of, or the consummation by the Plains Parties of the
transactions contemplated by this Agreement, the execution, delivery and performance of the
Indenture by the Plains Parties that are parties thereto or the consummation of the transactions
contemplated thereby, except (i) such as have been obtained under the Act, (ii) such as may be
required under the blue sky laws of any jurisdiction or the by-laws and rules of the Financial
Industry Regulatory Authority, Inc. in connection with the purchase and distribution by the
Underwriters of the Notes in the manner contemplated herein and in the Pricing Disclosure Package
and the Prospectus, (iii) such as will be obtained prior to the closing of the transactions
contemplated by the MIPA and (iv) such that the failure to obtain would not have a material adverse
effect upon the condition (financial or other), business, prospects, properties, net worth or
results of operations of the Plains Entities, taken as a whole, or materially impair the ability of
the Plains Parties to consummate the transactions contemplated by this Agreement.
(y)
No Default
. None of the Plains Parties or the GP Entities is in (i) violation of its
Organizational Documents, or of any law, statute, ordinance, administrative or governmental rule or
regulation applicable to it or of any decree of any court or governmental agency or body having
jurisdiction over it or (ii) breach, default (or an event that, with notice or lapse of time or
both, would constitute such an event) or violation in the performance of any obligation, covenant
or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any
agreement, indenture, lease or other instrument to which it is a party or by which it or any of its
properties may be bound, which breach, default or violation would, if continued, have a material
adverse effect upon the condition (financial or other), business, prospects, properties, net worth
or results of operations of the Plains Entities, taken as a whole, or could materially impair the
ability of any of the Plains Parties to perform its obligations under this Agreement.
(z)
Independent Registered Public Accounting Firm
. The accountants, PricewaterhouseCoopers
LLP, who have certified or shall certify the audited financial statements included or incorporated
by reference in the Registration Statement, the most recent Preliminary Prospectus and the
Prospectus (and any amendment or supplement thereto), are independent registered public accountants
with respect to the Plains Parties as required by the Securities Act and the Rules and Regulations.
9
(aa)
Financial Statements
. At June 30, 2009, the Partnership would have had, on an as
adjusted basis as indicated in the Prospectus (and any amendment or supplement thereto), a total
capitalization as set forth therein. The financial statements (including the related notes and
supporting schedules) and other financial information included or incorporated by reference in the
Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto) present fairly in all material respects the financial position,
results of operations and cash flows of the entities purported to be shown thereby, at the dates
and for the periods indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods indicated, except to the
extent disclosed therein. The summary and selected historical financial information included or
incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus and
the Prospectus (and any amendment or supplement thereto) is accurately presented in all material
respects and prepared on a basis consistent with the audited and unaudited historical consolidated
financial statements from which it has been derived, except as described therein. The pro forma
financial statements and other pro forma financial information, if any, included or incorporated by
reference in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus
(and any amendment or supplement thereto) (i) present fairly in all material respects the
information shown therein, (ii) have been prepared in accordance with the Commission’s rules and
guidelines with respect to pro forma financial statements and (iii) have been properly computed on
the bases described therein. The assumptions used in the preparation of the pro forma financial
statements and other pro forma financial information, if any, included or incorporated by reference
in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus (and any
amendment or supplement thereto) are reasonable, and the adjustments used therein are appropriate
to give effect to the transactions or circumstances referred to therein. No other financial
statements or schedules of the Issuers are required by the Securities Act or the Exchange Act to be
included in the Registration Statement, the most recent Preliminary Prospectus or the Prospectus.
(bb)
Certain Transactions
. Except as disclosed in the Pricing Disclosure Package and the
Prospectus, subsequent to the respective dates as of which such information is given in the Pricing
Disclosure Package and the Prospectus, (i) none of the Plains Parties has incurred any liability or
obligation, indirect, direct or contingent, or entered into any transactions, not in the ordinary
course of business, that, singly or in the aggregate, is material to the Plains Entities, taken as
a whole, (ii) there has not been any material change in the capitalization, or material increase in
the short-term debt or long-term debt, of the Plains Parties or Plains AAP and (iii) there has not
been any material adverse change, or any development involving or that may involve, singly or in
the aggregate, a prospective material adverse change in the condition (financial or other),
business, prospects, properties, net worth or results of operations of the Plains Entities, taken
as a whole.
(cc)
Litigation
. There are no legal or governmental proceedings pending or, to the knowledge
of the Plains Parties, threatened, against any of the Plains Parties, the GP Entities or the
Non-Guarantor Subsidiaries, or to which any of the Plains Parties, the GP Entities or the
Non-Guarantor Subsidiaries is a party, or to which any of their respective properties is subject,
that are required to be described in the Registration Statement, the Pricing Disclosure Package or
the Prospectus but are not described as required, and there are no agreements, contracts,
indentures, leases or other instruments that are required to be described in the Registration
10
Statement, the Pricing Disclosure Package or the Prospectus or to be filed as an exhibit to
the Registration Statement that are not described or filed as required by the Securities Act or the
Exchange Act.
(dd)
Title to Properties
. The Plains Parties, the GP Entities and the Non-Guarantor
Subsidiaries have good and indefeasible title to all real property and good title to all personal
property described in the Pricing Disclosure Package and the Prospectus as being owned by them,
free and clear of all Liens except (i) as provided in the Second Restated Credit Agreement dated
November 6, 2008 (as amended, the “
Restated Facility
”) among Plains Marketing, Bank of America,
N.A., as administrative agent thereunder and the lenders from time to time party thereto, described
in the Pricing Disclosure Package and the Prospectus, and (ii) such as would not have a material
adverse effect upon the ability of the Plains Entities considered as a whole to conduct their
businesses as currently conducted and as contemplated by the Pricing Disclosure Package and the
Prospectus to be conducted; and all real property and buildings held under lease by any of the
Plains Parties, the GP Entities and the Non-Guarantor Subsidiaries are held under valid and
subsisting and enforceable leases with such exceptions as do not materially interfere with the use
of such properties taken as a whole as described in the Pricing Disclosure Package and the
Prospectus.
(ee)
Permits
. Each of the Plains Parties, the GP Entities and the Non-Guarantor Subsidiaries
has such permits, consents, licenses, franchises, certificates and authorizations of governmental
or regulatory authorities (“
permits
”) as are necessary to own its properties and to conduct its
business in the manner described in the Pricing Disclosure Package and the Prospectus, subject to
such qualifications as may be set forth in the Pricing Disclosure Package and the Prospectus and
except for such permits the failure of which to have obtained would not have, individually or in
the aggregate, a material adverse effect upon the ability of the Plains Entities considered as a
whole to conduct their businesses in all material respects as currently conducted and as
contemplated by the Pricing Disclosure Package and the Prospectus to be conducted; and none of the
Plains Parties, the GP Entities or the Non-Guarantor Subsidiaries have received any notice of
proceedings relating to the revocation or modification of any such permit which, individually or in
the aggregate, if the subject of an unfavorable decisions, ruling or finding would have a material
adverse effect upon the ability of the Plains Entities considered as a whole to conduct their
businesses in all material respects as currently conducted and as contemplated by the Pricing
Disclosure Package and the Prospectus to be conducted, except as set forth in or contemplated in
the Pricing Disclosure Package and the Prospectus.
(ff)
Rights-of-Way
. Each of the Plains Parties, the GP Entities and the Non-Guarantor
Subsidiaries has such consents, easements, rights-of-way or licenses from any person
(“
rights-of-way
”) as are necessary to conduct its business in the manner described in the Pricing
Disclosure Package and the Prospectus, subject to such qualifications as may be set forth in the
Pricing Disclosure Package and the Prospectus and except for such rights-of-way the failure of
which to have obtained would not have, individually or in the aggregate, a material adverse effect
upon the ability of the Plains Entities considered as a whole to conduct their businesses in all
material respects as currently conducted and as contemplated by the Pricing Disclosure Package and
the Prospectus to be conducted; each of the Plains Parties, the GP Entities and the Non-Guarantor
Subsidiaries has fulfilled and performed all its material obligations with respect
11
to such rights-of-way and no event has occurred that allows, or after notice or lapse of time
would allow, revocation or termination thereof or would result in any impairment of the rights of
the holder of any such rights-of-way, except for such failures to perform, revocations,
terminations and impairments that will not have a material adverse effect upon the ability of the
Plains Entities considered as a whole to conduct their businesses in all material respects as
currently conducted and as contemplated by the Pricing Disclosure Package and the Prospectus to be
conducted, subject in each case to such qualification as may be set forth in the Prospectus.
(gg)
Investment Company
. None of the Plains Parties is now, and after sale of the Notes to be
sold by the Issuers hereunder and application of the net proceeds from such sale as described in
the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds,” none of the
Plains Parties will be, (i) an “investment company” within the meaning of the Investment Company
Act of 1940, as amended, (ii) a “gas utility,” within the meaning of Tex. Util. Code § 121.001 or
(iii) a “public utility” or “utility” within the meaning of the Public Utility Regulatory Act of
Texas or under similar laws of any state in which any such Plains Party does business; other than
in respect of any Subsidiary that is under the jurisdiction of the California Public Utility
Commission.
(hh)
No Material Losses or Interference
. None of the Plains Parties, the GP Entities or the
Non-Guarantor Subsidiaries has sustained since the date of the latest audited financial statements
included in the Pricing Disclosure Package and the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity whether or not covered by
insurance, or from any labor dispute or court or governmental action, investigation, order or
decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the
Prospectus, which in each case would have a material adverse effect on the condition (financial or
other), business, prospects, properties, net worth or results of operations of the Plains Entities,
taken as a whole.
(ii)
Environmental Compliance
. Except as described in the Pricing Disclosure Package and the
Prospectus, none of the Plains Parties, the GP Entities or the Non-Guarantor Subsidiaries has
violated any environmental, safety, health or similar law or regulation applicable to its business
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental Laws
”), or lacks any permits,
licenses or other approvals required of them under applicable Environmental Laws to own, lease or
operate their properties and conduct their business as described in the Pricing Disclosure Package
and the Prospectus or is violating any terms and conditions of any such permit, license or
approval, which in each case would have a material adverse effect upon the condition (financial or
other), business, prospects, properties, net worth or results of operations of the Plains Entities,
taken as a whole.
(jj)
No Labor Disputes
. No labor dispute by the employees of any of the Plains Parties, the
GP Entities or the Non-Guarantor Subsidiaries exists or, to the knowledge of the Plains Parties, is
imminent, which would have a material adverse effect on the condition (financial or other),
business, prospects, properties, net worth or results of operations of the Plains Entities, taken
as a whole.
12
(kk)
Insurance
. The Plains Parties, the GP Entities and the Non-Guarantor Subsidiaries
maintain insurance covering their properties, operations, personnel and businesses against such
losses and risks as are reasonably adequate to protect them and their businesses in a manner
consistent with other businesses similarly situated. All such insurance is outstanding and duly in
force on the date hereof and will be outstanding and duly in force on the Delivery Date.
(ll)
Absence of Certain Actions
. Except as described in the Pricing Disclosure Package and
the Prospectus, there is (i) no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending or, to the knowledge of the
Plains Parties, threatened, to which any of the Plains Parties, the GP Entities or the
Non-Guarantor Subsidiaries, or any of their respective subsidiaries, is or may be a party or to
which the business or property of any of the Plains Parties, the GP Entities or the Non-Guarantor
Subsidiaries, or any of their respective subsidiaries, is or may be subject, and (ii) no
injunction, restraining order or order of any nature issued by a federal or state court or foreign
court of competent jurisdiction to which any of the Plains Parties, the GP Entities or the
Non-Guarantor Subsidiaries is or may be subject, that, in the case of clauses (i) and (ii) above,
would have, individually or in the aggregate, a material adverse effect upon the condition
(financial or other), business, prospects, properties, net worth or results of operations of the
Plains Entities, taken as a whole, or prevent or result in the suspension of the offering and
issuance of the Notes and the Guarantees.
(mm)
Other Actions
. No Subsidiary is currently prohibited, directly or indirectly, from
paying any dividends to the Partnership, from making any other distribution on such Subsidiary’s
capital stock or partnership or limited liability company interests, from repaying to the
Partnership any loans or advances to such Subsidiary from the Partnership or from transferring any
of such Subsidiary’s property or assets to the Partnership or any other Subsidiary of the
Partnership, except (i) as described in or contemplated by the Pricing Disclosure Package and the
Prospectus (exclusive of any amendment or supplement thereto), (ii) such prohibitions mandated by
the laws of each such Subsidiary’s state of formation and the terms of any such Subsidiary’s
governing instruments and (iii) where such prohibition would not have a material adverse effect on
the condition (financial or other), business, prospects, properties, net worth or results of
operations of the Plains Entities, taken as a whole.
(nn)
No Distribution of Other Offering Materials
. None of the Plains Parties has distributed
and, prior to the later to occur of (i) the Delivery Date and (ii) completion of the distribution
of the Notes, as the case may be, will not distribute, any prospectus (as defined under the
Securities Act) in connection with the offering and sale of the Notes other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus, subject to the conditions in
Section 1(h) of this Agreement, or other materials, if any, permitted by the Securities Act,
including Rule 134 of the Rules and Regulations.
(oo)
Books and Records; Accounting Controls
. The Partnership maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions are executed
in accordance with management’s general or specific authorization; (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with respect to any differences.
13
(pp)
Sarbanes-Oxley Act
. The Partnership and, to the knowledge of the Plains Parties, the
directors and officers of GP LLC in their capacities as such, are in compliance in all material
respects with all applicable and effective provisions of the Sarbanes-Oxley Act of 2002 and the
rules and regulations promulgated thereunder.
(qq)
Disclosure Controls
. The Partnership maintains disclosure controls and procedures (as
such term is defined in Rules 13a-15 and 15d-15 under the Exchange Act), that (i) are designed to
provide reasonable assurance that material information relating to the Partnership, including its
consolidated subsidiaries, is recorded, processed, summarized and communicated to the principal
executive officer, the principal financial officer and other appropriate officers of GP LLC to
allow for timely decisions regarding required disclosure, particularly during the periods in which
the periodic reports required under the Exchange Act are being prepared; (ii) have been evaluated
for effectiveness as of the end of the Partnership’s most recent fiscal quarter; and (iii) are
effective in all material respects to perform the functions for which they are established.
(rr)
No Deficiency in Internal Controls
. Based on the evaluation of its disclosure controls
and procedures conducted in connection with the preparation and filing of the Partnership’s Form
10-K, the Partnership is not aware of (i) any significant deficiency or material weakness in the
design or operation of internal controls over financial reporting that are likely to adversely
affect its ability to record, process, summarize and report financial data; or (ii) any fraud,
whether or not material, that involves management or other employees who have a significant role in
the internal controls over financial reporting of the Partnership.
(ss)
FCPA
. None of the Plains Entities nor, to the knowledge of the Plains Parties, any
director, officer, agent or employee of the Plains Entities (in their capacity as director,
officer, agent or employee) is aware of or has taken any action, directly or indirectly, that would
result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
(tt)
Money Laundering Laws
. No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the Plains Entities that involve
allegations of money laundering is pending or, to the knowledge of the Plains Parties, threatened.
(uu)
OFAC
. None of the Plains Entities nor, to the knowledge of the Plains Parties, any
director, officer or employee of the Plains Entities (in their capacity as director, officer or
employee) has received notice that it is subject to any sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department.
(vv)
Acquisition Financials
. The Partnership’s acquisition of the 50% membership interest in
the Joint Venture owned by Vulcan pursuant to the MIPA, as described in the most recent Preliminary
Prospectus and the Prospectus, will not require the filing by the
Partnership with the Commission of acquisition financial statements pursuant to Rule 3-05 of
Regulation S-X of the Exchange Act.
14
Any certificate signed by any officer of the Plains Parties and delivered to the Underwriters
or counsel for the Underwriters in connection with the offering of the Notes shall be deemed a
representation and warranty by the Plains Parties, as to matters covered thereby, to the
Underwriters.
2.
Purchase and Sale
. Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Issuers agree to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Issuers the principal
amount of Notes set forth opposite such Underwriter’s name on
Schedule I
hereto at a
purchase price of 98.8730% of the principal amount thereof, plus accrued interest, if any, from the
Delivery Date.
3.
Delivery and Payment
. Delivery of and payment for the Notes shall be made at the office
of Vinson & Elkins L.L.P., 1001 Fannin, Houston, Texas 77002 at 9:00 a.m., Houston time, on
September 4, 2009, or at such time on such later date not more than three business days after the
foregoing date as the Representatives shall designate, which date and time may be postponed by
agreement between the Representatives and the Issuers or as provided in Section 9 hereof (such date
and time of delivery and payment for the Notes being herein called the “
Delivery Date
”). Payment
for the Notes shall be made by wire transfer in immediately available funds to the account(s)
specified by the Issuers to the Representatives against delivery to the nominee of The Depository
Trust Company (“
DTC
”), for the account of the Underwriters, of one or more global notes
representing the Notes (collectively, the “
Global Note
”).
4.
Offering by the Underwriters
. It is understood that the several Underwriters propose to
offer the Notes for sale to the public as set forth in the Prospectus.
5.
Agreements of the Plains Parties
. Each of the Plains Parties, jointly and severally,
acknowledges and agrees with the Underwriters that:
(a)
Post-Effective Amendments
. If, at the Applicable Time, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the
offering of the Notes may commence, the Plains Parties will endeavor to cause such
post-effective amendment to become effective as soon as possible and will advise the
Representatives promptly and, if requested by the Representatives, will confirm such advice
in writing when such post-effective amendment has become effective.
(b)
Preparation of Prospectus and Registration Statement
. The Issuers will advise the
Representatives promptly and, if requested by the Representatives, will confirm such advice
in writing: (i) of any request by the Commission for amendment of or a supplement to the
Registration Statement, the Preliminary Prospectus or the Prospectus or for additional
information; (ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of qualification of the
Notes for offering or sale in any jurisdiction or the initiation of any proceeding for such
purpose; and (iii) within the period of time referred to in paragraph
15
(e) below, of any change in the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Plains Entities, taken as a whole, or
of the happening of any event that makes any statement of a material fact made in the
Registration Statement, the Pricing Disclosure Package or the Prospectus (as then amended
or supplemented) untrue or that requires the making of any additions to or changes in the
Registration Statement, the Pricing Disclosure Package or the Prospectus (as then amended
or supplemented) in order to state a material fact required by the Securities Act or the
regulations thereunder to be stated therein or necessary in order to make the statements
therein (in the case of any Preliminary Prospectus or the Prospectus, in the light of the
circumstances under which any such statements were made) not misleading, or of the necessity
to amend or supplement the Prospectus (as then amended or supplemented) to comply with the
Securities Act or any other applicable law. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement, the Partnership will
make every commercially reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c)
Final Term Sheet and Issuer Free Writing Prospectuses
. The Issuers agree to (i)
prepare a final term sheet, containing a description of the final terms of the Notes and the
offering thereof, in the form approved by the Representatives and attached as
Schedule
II
hereto, and to file such term sheet pursuant to Rule 433 under the Securities Act
within the time required by such Rule and (ii) not to make any offer relating to the Notes
that would constitute an Issuer Free Writing Prospectus without the prior written consent of
the Representatives.
(d)
Copies of Registration Statement
. The Issuers will furnish to the Underwriters,
without charge, (i) one copy of the manually signed copy of the registration statement
corresponding to the Commission’s electronic data gathering, analysis and retrieval system
(“
EDGAR
”) or interactive data electronic applications (“
IDEA
”) version filed with the
Commission and of each amendment thereto, including financial statements and all exhibits to
the registration statement, (ii) such number of conformed copies of the registration
statement as originally filed and of each amendment thereto, but without exhibits, as the
Underwriters or the Underwriters’ counsel may reasonably request, (iii) such number of
copies of the Incorporated Documents, without exhibits, as the Underwriters may request, and
(iv) such number of copies of the exhibits to the Incorporated Documents as the Underwriters
may request.
(e)
Filing of Amendment or Supplement
. For such period as in the opinion of counsel
for the Underwriters a prospectus is required by the Securities Act to be delivered in
connection with sales by any Underwriter or dealer, the Issuers will not file any amendment
to the Registration Statement, supplement to the Prospectus (or any other prospectus
relating to the Notes filed pursuant to Rule 424(b) of the Rules and Regulations that
differs from the Prospectus as filed pursuant to such Rule 424(b)), or any Preliminary
Prospectus or Issuer Free Writing Prospectus of which the Underwriters shall not previously
have been advised or to which the Underwriters shall have reasonably objected in writing
after being so advised unless the Issuers shall have determined based upon the advice of
counsel that such amendment, supplement or other filing is required by law; and the Issuers
will promptly notify the Representatives after
16
they shall have received notice thereof of the time when any amendment to the
Registration Statement becomes effective or when any supplement to the Prospectus has been
filed.
(f)
Copies of Documents to the Underwriters
. As soon after the Applicable Time as
possible and thereafter from time to time for such period as in the opinion of counsel for
the Underwriters a prospectus is required by the Securities Act to be delivered in
connection with sales by any Underwriter or dealer, the Issuers will expeditiously deliver
to each Underwriter and each dealer that the Underwriters may specify, without charge, as
many copies of the Prospectus (and of any amendment or supplement thereto) as the
Underwriters may reasonably request. At any time after nine months after the time of
issuance of the Prospectus, upon request and without charge, the Issuers will deliver as
many copies of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Securities Act as the Underwriters may reasonably request, provided that a prospectus is
required by the Securities Act to be delivered in connection with sales of Notes by any
Underwriter or dealer. The Issuers consent to the use of the Prospectus (and of any
amendment or supplement thereto) in accordance with the provisions of the Securities Act and
with the securities or Blue Sky laws of the jurisdictions in which the Notes are offered by
the Underwriters and by all dealers to whom Notes may be sold, both in connection with the
offering and sale of the Notes and for such period of time thereafter as the Prospectus is
required by the Securities Act to be delivered in connection with sales by any Underwriter
or dealer. If during such period of time any event shall occur that in the judgment of the
Issuers or in the opinion of counsel for the Underwriters and the Issuers is required to be
set forth in the Prospectus (as then amended or supplemented) or should be set forth therein
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or
to file under the Exchange Act any document which, upon filing, becomes an Incorporated
Document) to comply with the Securities Act or any other law, the Issuers will forthwith
prepare and, subject to the provisions of paragraph (e) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will expeditiously
furnish to the Underwriters and dealers a reasonable number of copies thereof; provided
that, if any such event necessitating a supplement or amendment to the Prospectus occurs at
any time after nine months after the time of issuance of the Prospectus, such supplement or
amendment shall be prepared at the Underwriters’ expense. In the event that the Issuers and
the Representatives agree that the Prospectus should be amended or supplemented, the
Issuers, if requested by the Representatives, will promptly issue a press release announcing
or disclosing the matters to be covered by the proposed amendment or supplement unless the
Issuers shall have determined, based on the advice of counsel, that the issuance of such
press release would not be required by law.
(g)
Blue Sky Laws
. The Issuers and the Subsidiary Guarantors will cooperate with the
Representatives and with counsel for the Underwriters in connection with the registration or
qualification of the Notes and the Guarantees, respectively, for offering and sale by the
Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as
the Underwriters may reasonably designate and will file such consents to service of process
or other documents reasonably necessary or appropriate in order to
17
effect such registration or qualification;
provided
that in no event shall any
Plains Party be obligated to qualify to do business in any jurisdiction where it is not now
so qualified or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Notes, in any jurisdiction where
it is not now so subject. The Issuers and Subsidiary Guarantors will promptly notify the
Underwriters of the receipts by the Issuers and Subsidiary Guarantors of any notifications
with respect to the suspension of the qualifications of the Notes and Guarantees,
respectively, for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(h)
Reports to Security Holders
. In accordance with Section 11(a) of the Securities
Act and Rule 158 of the Rules and Regulations, the Issuers will make generally available to
their security holders an earnings statement (which need not be audited) in reasonable
detail covering the 12-month period beginning not later than the first day of the month next
succeeding the month in which occurred the effective date (within the meaning of Rule 158)
of the Registration Statement as soon as practicable after the end of such period.
(i)
Copies of Reports
. Unless otherwise available on EDGAR, during the period of two
years hereafter, the Issuers will furnish or make available to the Underwriters (i) as soon
as publicly available, a copy of each report of the Issuers mailed to unitholders or filed
with the Commission or the principal national securities exchange or automated quotation
system upon which the Notes may be listed, and (ii) from time to time such other information
concerning the Issuers as the Underwriters may reasonably request.
(j)
Termination Expenses
. If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to Section 9
hereof or Section 10 hereof (except pursuant to the first clause of Section 10(i))) or if
this Agreement shall be terminated by the Underwriters because of any failure or refusal on
the part of any of the Plains Parties to comply with the terms or fulfill any of the
conditions of this Agreement, the Plains Parties, jointly and severally, agree to reimburse
the Underwriters for all reasonable out-of-pocket expenses (including reasonable fees and
expenses of counsel for the Underwriters) incurred by the Underwriters in connection
herewith.
(k)
Application of Proceeds
. The Issuers will apply the net proceeds from the sale of
the Notes in accordance with the description set forth under the caption “Use of Proceeds”
in the Pricing Disclosure Package and the Prospectus.
(l)
Filing of Prospectus
. The Issuers will timely file the Prospectus, and any
amendment or supplement thereto, pursuant to Rule 424(b) of the Rules and Regulations and
will advise the Underwriters of the time and manner of such filing.
(m)
Stabilization
. Except as stated in this Agreement and the Prospectus, none of the
Plains Parties has taken, or will take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or manipulation of the
price of any security of the Issuers to facilitate the sale or resale of the Notes.
18
(n)
Investment Company
. Each of the Plains Parties will take such steps as shall be
necessary to ensure that none of them shall become an “investment company” within the
meaning of such term under the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder.
(o)
Exchange Act Reports
. The Issuers, during the period when the Prospectus is
required to be delivered under the Securities Act, will file all documents required to be
filed with the Commission pursuant to the Exchange Act within the time periods required by
the Exchange Act.
(p)
Free Writing Prospectuses
. The Issuers have complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where required and
legending. The Issuers represent that they have satisfied and agree that they will satisfy
the conditions under Rule 433 under the Securities Act to avoid a requirement to file with
the Commission any electronic road show. The Issuers agree that if at any time following
issuance of an Issuer Free Writing Prospectus any event occurred or occurs as a result of
which such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the most recent Preliminary Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances then prevailing,
not misleading, the Issuers will give prompt notice thereof to the Representatives and, if
requested by the Representatives, will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document that will correct such
conflict, statement or omission;
provided
,
however
, that this representation
and warranty shall not apply to any statements or omissions in an Issuer Free Writing
Prospectus made in reliance upon and in conformity with information furnished in writing to
the Issuers by an Underwriter through the Representatives expressly for use therein, which
information is specified in Section 12.
(q)
Clear Market
. During the period from the date hereof through and including the
business day following the Delivery Date, the Issuers will not, without the prior written
consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any
debt securities issued or guaranteed by the Plains Parties and having a tenor of more than
one year.
6.
Indemnification and Contribution
.
(a) Each of the Plains Parties, jointly and severally, agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each Underwriter
and each person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses, joint or several (including reasonable costs of
investigation), to which they or any of them became subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or expenses
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any
19
Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus or in any
amendment or supplement thereto or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus or in any amendment or supplement thereto, any material fact required to be
stated therein or necessary to make the statements therein (in the case of any Preliminary
Prospectus or the Prospectus, in the light of the circumstances under which any such
statements were made) not misleading, and shall reimburse each Underwriter and each such
director, officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, director, officer, employee or
controlling person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are incurred;
provided
,
however
, that the Plains Parties shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or in any such amendment or supplement thereto, in reliance
upon and in conformity with written information concerning such Underwriter furnished to the
Issuers through the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information consists solely of the information specified in
Section 12. The foregoing indemnity agreement is in addition to any liability that the
Plains Parties may otherwise have to any Underwriter or to any director, officer, employee
or controlling person of that Underwriter.
(b) If any action, suit or proceeding shall be brought against any Underwriter, any
director, officer, employee or agent of any Underwriter or any person controlling any
Underwriter in respect of which indemnity may be sought against a Plains Party, such
Underwriter or such director, officer, employee, agent or controlling person shall promptly
notify the Partnership in writing, and the Issuers shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such indemnified party and
payment of all reasonable fees and expenses. The failure to notify the indemnifying party
shall not relieve it from liability that it may have to an indemnified party unless the
indemnifying party is foreclosed by reason of such delay from asserting a defense otherwise
available to it. Such Underwriter or any such director, officer, employee, agent or
controlling person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in (but not control) the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such director,
officer, employee, agent or controlling person unless (i) the Issuers have agreed in writing
to pay such fees and expenses, (ii) the Issuers have failed to assume the defense and employ
counsel within a reasonable period of time in light of the circumstances or (iii) such
indemnified party or parties shall have reasonably concluded, based on the advice of
counsel, that there may be defenses available to it or them that are different from,
additional to or in conflict with those available to the Issuers (in which case the Issuers
shall not have the right to direct the defense of such action, suit or proceeding on behalf
of the indemnified party or parties), in any of which events the Issuers shall pay the
reasonable fees and expenses of such counsel as such fees and expenses are incurred (it
being understood, however, that the Issuers shall not be liable
20
for the expenses of more than one separate counsel (in addition to any local counsel)
in any one action, suit or proceeding or series of related actions, suits or proceedings in
the same jurisdiction representing the indemnified parties who are parties to such action,
suit or proceeding). None of the Plains Parties shall be liable for any settlement of any
such action, suit or proceeding effected without its written consent, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the Plains Parties agree, jointly and severally, to indemnify and hold
harmless any Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or expense by reason
of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Plains Parties, their respective directors and the officers who sign the Registration
Statement, and any person who controls the Plains Parties within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Plains Parties to each Underwriter, but only with respect to information
furnished in writing by or on behalf of such Underwriter through the Underwriters expressly
for use in the Registration Statement, any Preliminary Prospectus, the Prospectus, any
Issuer Free Writing Prospectus or in any amendment or supplement thereto, which information
is limited to the information set forth in Section 12. If any action, suit or proceeding
shall be brought against a Plains Party, any of such directors and officers or any such
controlling person based on the Registration Statement, any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus or in any amendment or supplement thereto,
and in respect of which indemnity may be sought against any Underwriter pursuant to this
paragraph (c), such Underwriter shall have the rights and duties given to the Plains Parties
by paragraph (b) above (except that if the Issuers shall have assumed the defense thereof
such Underwriter shall not be required to do so, but may employ separate counsel therein and
participate in (but not control) the defense thereof, but the fees and expenses of such
counsel shall be at such Underwriter’s expense), and the Plains Parties, any of such
directors and officers and any such controlling person shall have the rights and duties
given to the Underwriters by paragraph (b) above. The foregoing indemnity agreement shall
be in addition to any liability that the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under paragraph (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received by the Plains
Parties on the one hand and the Underwriters on the other hand from the offering of the
Notes, or (ii) if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Plains Parties on the one hand and
the Underwriters on the other in connection with the statements or omissions that resulted
in such losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Plains Parties on
21
the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received
by the Issuers bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Plains Parties on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Plains Parties or any other affiliate of the
Plains Parties on the one hand, or by the Underwriters on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) The Plains Parties and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by a pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding. Notwithstanding
the provisions of this Section 6, no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price of the Notes underwritten by it and
distributed to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute as provided in this Section 6 are several and not joint.
(f) No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle or compromise
or consent to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action, suit
or proceeding and does not include any findings of fact or admissions of fault or
culpability as to the indemnified party, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there be a final
judgment for the plaintiff in any such action, the indemnifying party agrees to indemnify
and hold harmless any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
22
(g) Any losses, claims, damages, liabilities or expenses for which an indemnified party
is entitled to indemnification or contribution under this Section 6 shall be paid by the
indemnifying party to the indemnified party as such losses, claims, damages, liabilities or
expenses are incurred. The indemnity and contribution agreements contained in this Section
6 and the covenants, representations and warranties of the Plains Parties set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling any
Underwriter, the Plains Parties or any of their respective directors or officers or any
person controlling the Plains Parties, (ii) acceptance of any Notes and payment therefor in
accordance with the terms of this Agreement, and (iii) any termination of this Agreement. A
successor to any Underwriter or any person controlling any Underwriter, or to the Plains
Parties or any of their respective directors or officers or any person controlling a Plains
Party shall be entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 6.
7.
Conditions to the Obligations of the Underwriters
. The several obligations of the
Underwriters to purchase the Notes are subject to the following conditions:
(a) All filings required by Rule 424 and Rule 430A of the Rules and Regulations shall
have been made. All material required to be filed by the Issuers pursuant to Rule 433(d)
under the Securities Act shall have been filed with the Commission within the applicable
time period prescribed for such filing by Rule 433 under the Securities Act. No stop order
(i) suspending the effectiveness of the Registration Statement or (ii) suspending or
preventing the use of the most recent Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Plains Parties or any Underwriter, threatened by
the Commission, and any request of the Commission for additional information (to be included
in the Registration Statement or the Prospectus or otherwise) shall have been complied with
to the reasonable satisfaction of the Representatives.
(b) Subsequent to the Applicable Time, there shall not have occurred (i) any change, or
any development involving a prospective change, in or affecting the condition (financial or
other), business, prospects, properties, net worth or results of operations of any of the
Plains Parties not contemplated by the Prospectus, which in the Representatives’ opinion,
would materially adversely affect the market for the Notes, or (ii) any event or development
relating to or involving any of the Plains Parties or any executive officer or director of
any of such entities that makes any statement made in the Prospectus untrue or which, in the
opinion of the Issuers and their counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a material fact
required by the Securities Act or any other law to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, if amending or supplementing the Prospectus to reflect such event or
development would, in the Representatives’ opinion, materially adversely affect the market
for the Notes.
23
(c) The Representatives shall have received an opinion of Vinson & Elkins L.L.P.,
special counsel for the Plains Parties, dated the Delivery Date and addressed to the
Underwriters, to the effect that:
(i) Each of the Plains Parties (other than the Canadian Subsidiary Guarantors
and Lone Star Trucking, LLC, a California limited liability company (“
Lone Star
”)),
as to which such counsel need not express an opinion) and the GP Entities has been
duly formed or incorporated and is validly existing in good standing as a limited
partnership, limited liability company or corporation under the laws of its
respective jurisdiction of formation or incorporation with full corporate,
partnership or limited liability company power and authority, as the case may be, to
own or lease its properties and to conduct its business, in each case in all
material respects.
(ii) Each Plains Entity (other than a Canadian Subsidiary, as to which such
counsel need not express an opinion) that serves as a general partner of another
Plains Entity has full corporate or limited liability company, as the case may be,
to serve as general partner of such Plains Entity, in each case in all material
respects.
(iii) The GP Entities hold the general partner and membership interests
described in the Registration Statement; all of such interests have been duly
authorized and validly issued in accordance with their respective limited
partnership or limited liability company agreement, as applicable, and all the
membership interests in the General Partner are fully paid (to the extent required
under the General Partner LLC Agreement) and nonassessable (except as such
assessability may be affected by Section 18-607 and 18-804 of the Delaware Limited
Liability Company Act).
(iv) All of the outstanding shares of capital stock or other equity interests
(other than general partner interests) of each Domestic Subsidiary Guarantor and the
Joint Venture (other than Lone Star, as to which such counsel need not express an
opinion) (a) have been duly authorized and validly issued (in the case of an
interest in a limited partnership or limited liability company, in accordance with
the Organizational Documents of such Domestic Subsidiary Guarantor or the Joint
Venture), are fully paid (in the case of an interest in a limited partnership or
limited liability company, to the extent required under the Organizational Documents
of such Domestic Subsidiary Guarantor or the Joint Venture) and nonassessable
(except (i) in the case of an interest in a Delaware limited partnership or Delaware
limited liability company, as such nonassessability may be affected by Section
17-607 and 17-804 of the Delaware LP Act or Section 18-607 and 18-804 of the
Delaware LLC Act, as applicable, (ii) in the case of an interest in a limited
partnership or limited liability company formed under the laws of another domestic
state, as such nonassessability may be affected by similar provisions of such
state’s limited partnership or limited liability company statute, as applicable) and
(b) except for a 50% membership interest in the Joint Venture owned by Vulcan Gas
Storage LLC, are owned,
24
directly or indirectly, by the Partnership, free and clear of all Liens (A) in
respect of which a financing statement under the Uniform Commercial Code of the
States of Delaware or Texas naming the Partnership as debtor or, in the case of
capital stock or other equity interests of a Domestic Subsidiary Guarantor (other
than Lone Star, as to which such counsel need not express an opinion) owned directly
by one or more other Domestic Subsidiary Guarantors (other than Lone Star, as to
which such counsel need not express an opinion), naming any such other Domestic
Subsidiary Guarantors as debtor(s), is on file in the office of the Secretary of
State of the States of Delaware or Texas or (B) otherwise known to such counsel,
without independent investigation, other than those created by or arising under the
corporate, limited liability company or partnership laws of the jurisdiction of
formation or incorporation of the respective Domestic Subsidiary Guarantor or the
Joint Venture, as the case may be.
(v) All outstanding general partner interests in each Domestic Subsidiary
Guarantor that is a partnership have been duly authorized and validly issued in
accordance with the Organizational Documents of such Domestic Subsidiary Guarantor
and are owned, directly or indirectly, by the Partnership, free and clear of all
Liens (A) in respect of which a financing statement under the Uniform Commercial
Code of the States of Delaware or Texas naming the Partnership as debtor or, in the
case of general partner interests of a Domestic Subsidiary Guarantor owned directly
by one or more other Domestic Subsidiary Guarantors, naming any such other Domestic
Subsidiary Guarantors as debtor(s), is on file in the office of the Secretary of
State of the States of Delaware or Texas or (B) otherwise known to such counsel,
without independent investigation, other than those created by or arising under the
partnership laws of the jurisdiction of formation of the respective Domestic
Subsidiary Guarantor, as the case may be.
(vi) Each of the Issuers has the requisite power and authority to issue, sell
and deliver the Notes, and each of the Domestic Subsidiary Guarantors (other than
Lone Star, as to which such counsel need not express an opinion) has all requisite
power and authority to issue and deliver the Guarantees, in accordance with and upon
the terms and conditions set forth in this Agreement, its respective Organizational
Documents, the Indenture, the Registration Statement, the Pricing Disclosure Package
and the Prospectus.
(vii) To such counsel’s knowledge, neither the filing of the Registration
Statement nor the offering or sale of the Notes as contemplated by this Agreement
gives rise to any rights for or relating to the registration of any Notes or other
securities of the Plains Parties, except such rights as have been waived or
satisfied.
(viii) The Indenture has been duly qualified under the Trust Indenture Act.
25
(ix) This Agreement has been duly authorized, executed and delivered by each of
the Plains Parties (other than the Canadian Subsidiary Guarantors and Lone Star, as
to which such counsel need not express an opinion).
(x) The Base Indenture and the Seventeenth Supplemental Indenture thereto have
been duly authorized, executed and delivered by each of the Plains Parties that is a
party thereto (other than the Canadian Subsidiary Guarantors and Lone Star, as to
which such counsel need not express an opinion), and (assuming the due
authorization, execution and delivery thereof by the Canadian Subsidiary Guarantors,
Lone Star and the Trustee) the Indenture is a valid and legally binding agreement of
such Plains Parties, enforceable against each of them in accordance with its terms;
provided
that the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar
laws from time to time in effect affecting creditors’ rights and remedies generally
and by general principles of equity (regardless of whether such principles are
considered in a proceeding in equity or at law) and (B) public policy, applicable
law relating to fiduciary duties and indemnification and an implied covenant of good
faith and fair dealing.
(xi) The global certificate representing the Notes is in the form contemplated
by the Indenture, the Notes have been duly and validly authorized and, when such
certificate is executed and authenticated in accordance with the provisions of the
Indenture and the Notes and delivered to and paid for by the Underwriters under this
Agreement, the Notes will constitute legal, valid, binding and enforceable
obligations of the Issuers entitled to the benefits of the Indenture;
provided
that the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar
laws from time to time in effect affecting creditors’ rights and remedies generally
and by general principles of equity (regardless of whether such principles are
considered in a proceeding in equity or at law) and (B) public policy, applicable
law relating to fiduciary duties and indemnification and an implied covenant of good
faith and fair dealing.
(xii) The Guarantees have been duly authorized by each of the Subsidiary
Guarantors (other than Lone Star, as to which such counsel need not express an
opinion) and, when the Notes have been duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein (and assuming
due execution, authentication and delivery of the Guarantees by the Canadian
Subsidiaries and by Lone Star), will be valid and legally binding obligations of
each of the Subsidiary Guarantors, enforceable against each of the Subsidiary
Guarantors in accordance with their terms,
provided
that the enforceability
thereof may be limited by (A) applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws from time to time in effect
affecting creditors’ rights and remedies generally and by general principles of
equity (regardless of whether such principles are considered in a proceeding in
equity or at law) and (B) public policy, applicable law relating to
fiduciary duties and indemnification and an implied covenant of good faith and
fair dealing.
26
(xiii) At or before the Delivery Date, the partnership agreement or limited
liability company agreement, as applicable, of each of the Plains Parties has been
duly authorized, executed and delivered by the parties thereto and is a valid and
legally binding agreement of such parties thereto, enforceable against the parties
thereto in accordance with their respective terms; provided, that, with respect to
each such agreement, the enforceability thereof may be limited by (A) applicable
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar
laws from time to time in effect affecting creditors’ rights and remedies generally
and by general principles of equity (regardless of whether such principles are
considered in a proceeding in equity or at law) and (B) public policy, applicable
law relating to fiduciary duties and indemnification and an implied covenant of good
faith and fair dealing.
(xiv) None of the offering, issuance and sale by the Issuers of the Notes or
the Domestic Subsidiary Guarantors (other than Lone Star, as to which such counsel
need not express an opinion) of the Guarantees, the execution, delivery and
performance of this Agreement and the MIPA by the Plains Parties that are parties
hereto or thereto (other than the Canadian Subsidiary Guarantors and Lone Star, as
to which such counsel need not express an opinion), the consummation of the
transactions contemplated by this Agreement and the MIPA, the execution, delivery
and performance of the Indenture by the Plains Parties (other than the Canadian
Subsidiary Guarantors and Lone Star, as to which such counsel need not express an
opinion) that are parties thereto or the consummation of the transactions
contemplated thereby (A) constitutes or will constitute a violation of the
Organizational Documents of any of the Plains Parties (other than the Organizational
Documents of the Canadian Subsidiary Guarantors or Lone Star, as to which such
counsel need not express an opinion) or the GP Entities, (B) conflicts or will
conflict with or constitutes or will constitute a breach or violation of, a change
of control or a default under (or an event that, with notice or lapse of time or
both, would constitute such an event), any document or agreement filed as an exhibit
to any Incorporated Document (other than the Second Amended and Restated Credit
Agreement [US/Canada Facilities] dated July 31, 2006 (as amended, the “
Revolving
Agreement
”) among the Partnership, PMC (Nova Scotia) Company, a Nova Scotia
unlimited liability company (“
PMC NS
”), Plains Marketing Canada, L.P., an Alberta
limited partnership (“
PMC LP
”), and Plains Midstream Canada ULC, an Alberta
unlimited liability company (“
Plains Midstream Canada
”), as borrowers thereunder,
Bank of America, N.A., as administrative agent thereunder, Bank of America, N.A.,
acting through its Canada Branch, as Canadian administrative agent thereunder, and
various other agents thereunder and lenders from time to time party thereto, and the
Restated Facility, as to which such counsel need not express an opinion) and the
MIPA, (C) results or will result in any violation of the Delaware LP Act, the
Delaware LLC Act, the Delaware General Corporation Law (the “
DGCL
”), the laws of the
State of Texas or federal law, or (D) results or will result in the creation or
imposition
27
of any Lien upon any property or assets of any of the Plains Parties (other
than the Canadian Subsidiary Guarantors and Lone Star, as to which such counsel need
not express an opinion) or the GP Entities which conflicts, breaches, violations or
defaults in the case of clauses (B), (C) or (D) would have a material adverse effect
upon the condition (financial or other), business, prospects, net worth or results
of operations of the Plains Entities, taken as a whole, or materially impair the
ability of the Plains Parties to consummate the transactions contemplated by this
Agreement or the MIPA, it being understood that such counsel need not express an
opinion in clause (C) of this paragraph (xvi) with respect to any securities or
other anti-fraud law.
(xv) No consent, approval, authorization, filing with or order of any federal,
Delaware or Texas court, governmental agency or body having jurisdiction over the
Plains Parties or the GP Entities or any of their respective properties is required
in connection with the transactions contemplated by this Agreement, the execution,
delivery and performance of this Agreement and the MIPA by the Plains Parties that
are parties hereto and thereto and the consummation of the transactions contemplated
by this Agreement and the MIPA, the execution, delivery and performance of the
Indenture by the Plains Parties that are parties thereto or the consummation of the
transactions contemplated thereby, except (A) such as have been obtained under the
Act (as to which such counsel need not express any opinion), and (B) such as may be
required under the blue sky laws of any jurisdiction or the by-laws and rules of the
Financial Industry Regulatory Authority, Inc. in connection with the purchase and
distribution by the Underwriters of the Notes and the Guarantees in the manner
contemplated herein and in the Disclosure Package and the Prospectus (as to which
such counsel need not express any opinion), (C) such as will be obtained prior to
the closing of the transactions completed by the MIPA, (D) such that the failure to
obtain would not have a material adverse effect upon the condition (financial or
other), business, prospects, net worth or results of operations of the Plains
Entities, taken as a whole, or materially impair the ability of the Plains Parties
to consummate the transactions contemplated by this Agreement or the MIPA and (D)
such other that have been obtained or taken and are in full force and effect.
(xvi) The statements under the caption “Material U.S. Federal Income Tax
Consequences” in relation to the Notes in each of the Pricing Disclosure Package and
the Prospectus, insofar as such statements purport to summarize certain provisions
of documents and legal matters referred to therein, fairly summarize such provisions
and legal matters in all material respects, subject to the qualifications and
assumptions stated therein; and the Indenture and the Notes and the Guarantees
conform in all material respects to the descriptions thereof contained in the
Pricing Disclosure Package and the Prospectus.
(xvii) The Registration Statement was declared effective under the Securities
Act on December 11, 2008; to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened by the
28
Commission; and any required filing of the Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period required by such Rule.
(xviii) The Registration Statement, the Pricing Disclosure Package and the
Prospectus (except for the financial statements and the notes and the schedules
thereto and the other financial information included or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package or the Prospectus, as to
which such counsel need not express an opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Exchange Act and the
rules and regulations promulgated thereunder.
(xix) None of the Plains Parties is now, and after sale of the Notes to be sold
by the Issuers hereunder and application of the net proceeds from such sale as
described in the Pricing Disclosure Package and the Prospectus under the caption
“Use of Proceeds,” none of the Plains Parties will be, an “investment company” as
such term is defined in the Investment Company Act.
In addition, such counsel shall state that they have participated in conferences with
officers and other representatives of the Plains Parties and the independent public
accountants of the Partnership and the Underwriters’ representatives, at which the contents
of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related
matters were discussed, and although such counsel has not independently verified, is not
passing on, and is not assuming any responsibility for the accuracy, completeness or
fairness of the statements contained in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus (except to the extent specified in the foregoing opinion), on the
basis of the foregoing, no facts have come to the attention of such counsel that lead them
to believe that:
(A) the Registration Statement, as of the most recent Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(B) the Pricing Disclosure Package, as of the Applicable Time, included an untrue
statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; or
(C) the Prospectus, as of its date and as of the Delivery Date, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading,
it being understood that such counsel need not express any statement or belief with respect
to (i) the financial statements and related schedules, including the notes and schedules
thereto and the auditor’s report thereon, included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus or (ii)
any other financial or statistical information, included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
29
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem
proper, and upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them conform to
the originals thereof, and that the signatures on all documents examined by them are
genuine, (C) state that their opinion is limited to federal laws, the Delaware LP Act, the
Delaware LLC Act, the DGCL, the laws of the State of Texas and the laws of the State of New
York and (D) state that they express no opinion with respect to (i) any permits to own or
operate any real or personal property or (ii) state or local taxes or tax statutes to which
any of the limited partners of the Partnership or any of the Plains Entities may be subject.
(d) The Representatives shall have received an opinion of Fulbright & Jaworski L.L.P.,
special counsel for the Plains Parties, dated the Delivery Date and addressed to the
Underwriters, to the effect that none of the offering, issuance or sale by the Issuers of
the Notes, the execution, delivery and performance of this Agreement by the Plains Parties,
the consummation of the transactions contemplated hereby, the execution, delivery and
performance of the Indenture by the Plains Parties that are parties thereto or the
consummation of the transactions contemplated thereby, results in a breach of, or
constitutes a default under (or an event which, with notice or lapse of time or both, would
constitute such an event) the provisions of any Credit Facility (as defined in Annex A to
such opinion, which shall include the Revolving Agreement, the Restated Facility and the
Credit Agreement dated January 3, 2008 (as amended, the “
Plains AAP Facility
”), by and among
Plains AAP, the lenders party thereto and Citibank, N.A., as Administrative Agent).
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem
proper, and upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them conform to
the originals thereof, and that the signatures on all documents examined by them are genuine
and (C) state that such opinions are limited to the laws of the State of Texas, excepting
therefrom municipal and local ordinances and regulations.
In rendering such opinion, such counsel shall state that such opinion letter may be
relied upon only by the Underwriters and their counsel in connection with the transactions
contemplated by this Agreement and no other use or distribution of such opinion letter may
be made without such counsel’s prior written consent.
(e) The Representatives shall have received an opinion of Tim Moore, general counsel
for GP LLC, dated the Delivery Date and addressed to the Underwriters, to the effect that:
30
(i) None of the offering, issuance and sale by the Issuers of the Notes or the
Subsidiary Guarantors of the Guarantees, the execution, delivery and performance by
the Plains Parties of this Agreement and the MIPA, the consummation of the
transactions contemplated by this Agreement and the MIPA, the execution, delivery
and performance of the Indenture by the Plains Parties that are parties thereto or
the consummation of the transactions contemplated thereby (A) constitutes or will
constitute a breach or violation of, a change of control or a default (or an event
which, with notice or lapse of time or both, would constitute such an event) under
any bond, debenture, note or any other evidence of indebtedness, indenture or any
other material agreement or instrument known to such counsel to which any Plains
Party or GP Entity is a party or by which any one of them may be bound (other than
any other document or agreement filed as an exhibit to an Incorporated Document or
the Plains AAP Facility or the MIPA) or (B) violates or will violate any statute,
law or regulation or any order, judgment, decree or injunction of any court or
governmental agency or body directed to any of the Plains Parties or the GP Entities
or any of their respective properties in a proceeding to which any of them is a
party, which would, in the case of either (A) or (B), have a material adverse effect
upon the condition (financial or other), business, prospects, net worth or results
of operations of the Plains Entities, taken as a whole, or materially impair the
ability of the Plains Parties to consummate the transactions contemplated by this
Agreement or the MIPA.
(ii) To the knowledge of such counsel, there is no legal or governmental
proceeding pending or threatened to which any of the Plains Parties is a party or to
which any of their respective properties is subject that is required to be disclosed
in the Pricing Disclosure Package or the Prospectus and is not so disclosed.
(iii) To the knowledge of such counsel, there are no agreements, contracts or
other documents to which any of the Plains Parties is a party that are required to
be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus or to be filed as exhibits to the Registration Statement or to the
Incorporated Documents that are not described or filed as required.
In addition, such counsel shall state that he has participated in discussions with
officers and other representatives of the Plains Parties and the independent public
accountants of the Partnership and the Underwriters’ representatives, at which the contents
of the Registration Statement, the Pricing Disclosure Package and the Prospectus and related
matters were discussed, and although such counsel has not independently verified, is not
passing on, and is not assuming any responsibility for the accuracy, completeness or
fairness of the statements contained in, the Registration Statement, the Pricing Disclosure
Package and the Prospectus, on the basis of the foregoing, no facts have come to the
attention of such counsel that lead him to believe that:
31
(A) the Registration Statement, as of the most recent Effective Date, contained an
untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
(B) the Pricing Disclosure Package, as of the Applicable Time, included an untrue
statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading; or
(C) the Prospectus, as of its date and as of the Delivery Date, included or includes an
untrue statement of a material fact or omitted or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading,
it being understood that such counsel need not express any statement or belief with respect
to (i) the financial statements and related schedules, including the notes and schedules
thereto and the auditor’s report thereon, included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus or (ii) any other
financial or statistical information included or incorporated by reference in the
Registration Statement, the Pricing Disclosure Package and the Prospectus.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent he deems proper,
and upon information obtained from public officials, (B) assume that all documents submitted
to him as originals are authentic, that all copies submitted to him conform to the originals
thereof, and that the signatures on all documents examined by him are genuine, (C) state
that such opinions are limited to federal laws and the Delaware LP Act, the Delaware LLC
Act, the DGCL and the laws of the State of Texas and (D) state that he expresses no opinion
with respect to either federal or state securities laws in clause (B) of paragraph (i) above
or state or local taxes or tax statutes.
(f) The Representatives shall have received an opinion of Bennett Jones LLP with
respect to the Province of Alberta, the Province of Nova Scotia and the federal laws of
Canada, dated the Delivery Date and addressed to the Underwriters, to the effect that:
(i) Each of the Canadian Subsidiary Guarantors has been duly formed and is
validly existing in good standing as a corporation, limited partnership or unlimited
liability company under the laws of its jurisdiction of formation with all necessary
partnership or corporate power and authority to own or lease its properties, as the
case may be, in all material respects as described in the Pricing Disclosure Package
and the Prospectus, and to conduct its business as currently conducted and as
proposed in the Pricing Disclosure Package and the Prospectus to be conducted. PMC
NS has all necessary corporate power and authority to act as general partner of PMC
LP in all material respects as described in the Pricing Disclosure Package and the
Prospectus. Each of the Canadian Subsidiary Guarantors is duly registered
extra-provincially for the transaction of
business and is in good standing under the laws of the jurisdictions set forth
on
Exhibit A
to this Agreement.
32
(ii) PMC NS is the sole general partner of PMC LP with a 0.01% interest in PMC
LP; such interest has been duly authorized and validly issued in accordance with the
agreement of limited partnership of PMC LP (as in effect on the date hereof and as
the same may be amended or restated prior to the Delivery Date, the “
PMC LP
Partnership Agreement
”); and PMC NS owns such interest free and clear of all liens,
encumbrances, security interests, charges or claims in respect of which a financing
statement under the laws of the Provinces of Nova Scotia or Alberta naming PMC NS as
debtor is on file.
(iii) Plains Marketing is the sole limited partner of PMC LP with a 99.99%
limited partner interest in PMC LP; such limited partner interest has been duly
authorized and validly issued in accordance with the PMC LP Partnership Agreement
and is fully paid (to the extent required under the PMC LP Partnership Agreement)
and nonassessable (except as such nonassessability may be affected by matters
described in the PMC LP Partnership Agreement).
(iv) Plains Marketing Canada LLC, a Delaware limited liability company (“
PMC
LLC
”), is the registered holder of 100% of the issued and outstanding capital stock
of PMC NS; such share capital has been duly authorized and validly issued in
accordance with the PMC NS Memorandum and Articles of Association, as fully paid
and nonassessable shares (except as such nonassessability may be affected by the
laws of the Province of Nova Scotia).
(v) Plains Midstream Canada is the registered holder of 100% of the issued and
outstanding capital stock of Aurora Pipeline Company Ltd., a corporation
incorporated under the laws of Canada (“
Aurora
”); such share capital has been duly
authorized and validly issued in accordance with the Aurora Memorandum and Articles
of Association, as fully paid and nonassessable shares (except as such
nonassessability may be affected by the laws of the Province of Alberta).
(vi) Plains Midstream, L.P., a Delaware limited partnership (“
Plains Midstream
LP
”), is the registered holder of 100% of the issued and outstanding capital stock
of Plains Midstream Canada; such share capital has been duly authorized and validly
issued in accordance with the Plains Midstream Canada Articles of Incorporation, as
fully paid and nonassessable shares (except as such nonassessability may be affected
by the laws of the Province of Alberta).
(vii) This Agreement has been duly authorized and validly executed and
delivered by each of PMC LP, PMC NS, Plains Midstream Canada and Aurora.
(viii) The Indenture has been duly authorized, executed and delivered by each
of PMC LP, PMC NS, Plains Midstream Canada and Aurora.
33
The laws of the Province of Alberta would permit an action to be brought
against PMC LP, PMC NS, Plains Midstream Canada or Aurora before a court of
competent jurisdiction in the Province of Alberta to enforce a final and conclusive
in personam judgment for a sum certain obtained in a New York court relating to the
Indenture, the Guarantees of the Canadian Subsidiary Guarantors, or any of them that
is not impeachable as void or voidable under the internal laws of the State of New
York, which action is predicated solely upon civil liability, subject to certain
exceptions set forth in such opinion.
(ix) No permit, consent, approval, authorization, order, registration, filing
or qualification of or with any court, governmental agency or body of the federal
government of Canada or the Province of Alberta is required for the offering,
issuance and sale by the Issuers of the Notes and the Guarantees or the execution,
delivery and performance of the Indenture by the Plains Parties.
(x) The PMC LP Partnership Agreement has been duly authorized, executed and
delivered by PMC NS and is a valid and legally binding agreement of PMC NS and
Plains Marketing enforceable against each of them in accordance with its terms;
provided
that, with respect to such agreement, the enforceability thereof
may be limited by (A) applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or similar laws from time to time in effect affecting
creditors’ rights and remedies generally and by general principles of equity
(regardless of whether such principles are considered in a proceeding in equity or
at law) and (B) public policy, applicable law relating to fiduciary duties and
indemnification and an implied covenant of good faith and fair dealing.
(xi) None of the offering, issuance and sale by the Issuers of the Notes or the
Subsidiary Guarantors of the Guarantees, the execution, delivery and performance of
this Agreement by the Plains Parties, the consummation of the transactions
contemplated hereby, the execution, delivery and performance of the Indenture by the
Plains Parties that are parties thereto or the consummation of the transactions
contemplated thereby constitutes or will constitute a violation of the
Organizational Documents of the Canadian Subsidiary Guarantors or any statute, law
or regulation of Canada or the Provinces of Alberta and Nova Scotia or, to the
knowledge of such counsel, any order, judgment, decree or injunction of any court or
governmental agency or body of Canada or the Provinces of Alberta and Nova Scotia
directed to any of the Canadian Subsidiary Guarantors or their properties in a
proceeding to which any of them or their property is a party.
(xii) To the knowledge of such counsel, each of the Canadian Subsidiary
Guarantors has such permits, consents, licenses, franchises and authorizations
(“
permits
”) issued by the appropriate federal or provincial or regulatory
authorities as are necessary to own or lease its properties and to conduct its
business as currently conducted and as proposed in the Pricing Disclosure Package
and the Prospectus to be conducted, subject to such qualifications as may be set
forth in the Pricing Disclosure Package and the Prospectus, and except for such
permits, consents, licenses, franchises and
34
authorizations which, if not obtained would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect upon the operations
conducted by the Canadian Subsidiary Guarantors, taken as a whole.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon
certificates of officers and employees of the Plains Parties, to the extent they deem
proper, and upon information obtained from public officials, (B) assume that all documents
submitted to them as originals are authentic, that all copies submitted to them conform to
the originals thereof, and that the signatures on all documents examined by them are
genuine, (C) state that such opinions are limited to federal laws of Canada and the laws of
the Provinces of Alberta and Nova Scotia, excepting therefrom municipal and local ordinances
and regulations and (D) state that they express no opinion with respect to state or local
taxes or tax statutes to which any of the limited partners of the Partnership or any of the
Plains Parties may be subject.
In rendering such opinion, such counsel shall state that (A) Vinson & Elkins L.L.P. is
thereby authorized to rely upon such opinion letter in connection with the transactions
contemplated by this Agreement as if such opinion letter were addressed and delivered to
them on the date thereof and (B) subject to the foregoing, such opinion letter may be relied
upon only by the Underwriters and their counsel in connection with the transactions
contemplated by this Agreement and no other use or distribution of such opinion letter may
be made without such counsel’s prior written consent.
(g) The Representatives shall have received an opinion of Baker Botts L.L.P., counsel
for the Underwriters, dated the Delivery Date and addressed to the Underwriters, with
respect to the offering, issuance and sale by the Issuers of the Notes and the Subsidiary
Guarantors of the Guarantees, the Indenture, the Registration Statement, the Pricing
Disclosure Package, the Prospectus (together with any amendment or supplement thereto) and
other related matters the Underwriters may reasonably require.
(h) At the time of the execution of this Agreement, the Representatives shall have
received from PricewaterhouseCoopers LLP, independent public accountants, letters dated such
date, in form and substance satisfactory to the Representatives, together with signed or
reproduced copies of such letters for each of the other Underwriters, containing statements
and information of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus; provided that the cut-off date
for the procedures performed by such accountants and described in such letters shall be a
date not more than five days prior to the date of such letter.
(i) On the Delivery Date, the Representatives shall have received
from PricewaterhouseCoopers LLP a letter, dated as of the Delivery Date, to the effect that
they reaffirm the statements made in the letter furnished pursuant to paragraph (h) of this
Section 7, except that the date referred to in the proviso in Section 7(h) hereof shall be a
date not more than three business days prior to the Delivery Date.
35
(j) (A) No stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted or taken or,
to the knowledge of the Plains Parties, shall be threatened by the Commission at or prior to
the Delivery Date; (B) there shall not have been any material change in the partners’
capital or stockholder’s or members’ equity of the Plains Entities, taken as a whole, nor
any material increase in the short-term or the long-term debt of the Plains Entities, taken
as a whole (other than in the ordinary course of business) from that set forth or
contemplated in the Registration Statement, the Pricing Disclosure Package or the
Prospectus; (C) there shall not have been, since the respective dates as of which
information is given in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, except as may otherwise be stated in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, any material adverse change in or affecting the
condition (financial or other), business, prospects, properties, net worth or results of
operations of the Plains Entities, taken as a whole; (D) the Plains Entities shall not have
any liabilities or obligations, direct or contingent (whether or not in the ordinary course
of business), that are material to the Plains Entities taken as a whole other than those
reflected in the Registration Statement, the Pricing Disclosure Package or the Prospectus;
and (E) all the representations and warranties of the Plains Parties contained in this
Agreement shall be true and correct on and as of the date hereof, as of the Applicable Time
and on and as of each applicable Delivery Date as if made on and as of each such Delivery
Date.
(k) The Plains Parties shall not have failed at or prior to the Delivery Date to have
performed or complied in all material respects with any of their agreements herein contained
and required to be performed or complied with by them hereunder at or prior to the Delivery
Date.
(l) There shall have been furnished to the Representatives at the Delivery Date a
certificate reasonably satisfactory to you, signed on behalf of the Partnership by the
President or any Vice President and the Chief Financial Officer of GP LLC to the effect
that: (A) the conditions stipulated in paragraph (j) of this Section 7 shall have been
satisfied; (B) the Partnership has in all material respects performed all obligations
required to be performed by it pursuant to the terms of this Agreement at or prior to such
Delivery Date; and (C) there has been no document required to be filed under the Exchange
Act that upon such filing would be deemed to be incorporated by reference into the
Prospectus that has not been so filed.
(m) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of Plains
Marketing GP Inc., a Delaware corporation (“
GP Inc.
”), by the President or any Vice
President of GP Inc. to the effect that: (A) the representations and warranties of each of
GP Inc., Plains Marketing, Plains Pipeline, L.P., a Texas limited partnership (“
Plains
Pipeline
”), Plains Towing LLC, a Delaware limited liability company (“
Plains Towing
”), PMC
LLC, Rancho LPG Holdings LLC, a Delaware limited liability company (“
Rancho LLC
”), Plains
LPG Services GP LLC, a Delaware limited liability company (“
LPG LLC
”), Plains LPG Services,
L.P., a Delaware limited partnership (“
LPG Services LP
”), PICSCO LLC, a Delaware limited
liability company (“
PICSCO
”), Lone
36
Star, Plains Midstream GP LLC, a Delaware limited liability company (“
Plains Midstream
GP
”), Plains Midstream LP and Plains Products Terminals LLC, a Delaware limited liability
company (“
Plains Products
”), contained in this Agreement were true and correct at and as of
the Applicable Time and are true and correct at and as of the Delivery Date as though made
at and as of the Delivery Date; and (B) each of GP Inc., Plains Marketing, Plains Pipeline,
Plains Towing, PMC LLC, Rancho LLC, LPG LLC, LPG Services LP, PICSCO, Lone Star, Plains
Midstream GP, Plains Midstream LP and Plains Products has in all material respects performed
all obligations and satisfied all conditions required to be performed or satisfied by it
pursuant to the terms of this Agreement at or prior to the Delivery Date.
(n) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of PAA Finance by
the President or any Vice President of PAA Finance to the effect that: (A) the
representations and warranties of PAA Finance contained in this Agreement were true and
correct at and as of the Applicable Time and are true and correct at and as of the Delivery
Date as though made at and as of the Delivery Date; and (B) PAA Finance has in all material
respects performed all obligations and satisfied all conditions required to be performed or
satisfied by it pursuant to the terms of this Agreement at or prior to the Delivery Date.
(o) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of Pacific Energy
Group LLC, a Delaware limited liability company (“
Pacific Energy Group
”), by the President
or any Vice President of Pacific Energy Group to the effect that: (A) the representations
and warranties of each of Pacific Energy Group, Pacific L.A. Marine Terminal LLC, a Delaware
limited liability company (“
Pacific LA
”), and Rocky Mountain Pipeline System LLC, a Delaware
limited liability company (“
Rocky Mountain
”), contained in this Agreement were true and
correct at and as of the Applicable Time and are true and correct at and as of the Delivery
Date as though made at and as of the Delivery Date; and (B) each of Pacific Energy Group,
Pacific LA and Rocky Mountain has in all material respects performed all obligations and
satisfied all conditions required to be performed or satisfied by it pursuant to the terms
of this Agreement at or prior to the Delivery Date.
(p) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of PMC NS by the
President or any Vice President of PMC NS to the effect that: (A) the representations and
warranties of each of PMC NS and PMC LP contained in this Agreement were true and correct at
and as of the Applicable Time and are true and correct at and as of the Delivery Date as
though made at and as of the Delivery Date; and (B) each of PMC NS and PMC LP has in all
material respects performed all obligations and satisfied all conditions required to be
performed or satisfied by it pursuant to the terms of this Agreement at or prior to the
Delivery Date.
(q) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of Plains
37
Midstream Canada by the President or any Vice President of Plains Midstream Canada to
the effect that: (A) the representations and warranties of Plains Midstream Canada
contained in this Agreement were true and correct at and as of the Applicable Time and are
true and correct at and as of the Delivery Date as though made at and as of the Delivery
Date; and (B) Plains Midstream Canada has in all material respects performed all obligations
and satisfied all conditions required to be performed or satisfied by it pursuant to the
terms of this Agreement at or prior to the Delivery Date.
(r) There shall have been furnished to the Underwriters at the Delivery Date a
certificate reasonably satisfactory to the Underwriters, signed on behalf of Aurora by the
President or any Vice President of Aurora to the effect that: (A) the representations and
warranties of Aurora contained in this Agreement were true and correct at and as of the
Applicable Time and are true and correct at and as of the Delivery Date as though made at
and as of the Delivery Date; and (B) Aurora has in all material respects performed all
obligations and satisfied all conditions required to be performed or satisfied by it
pursuant to the terms of this Agreement at or prior to the Delivery Date.
(s) At the Delivery Date, the Notes shall be rated at least “Baa3” by Moody’s Investors
Services, Inc. (“
Moody’s
) and “BBB-” by Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc. (“
S&P
”), and the Issuers shall have delivered to the
Underwriters a letter dated near the Delivery Date, from each such rating agency, or other
evidence satisfactory to the Underwriters, confirming that the Notes have such ratings; and
since the date of this Agreement, there shall not have occurred a downgrading in the rating
assigned to (A) the Notes below “Baa3” by Moody’s and “BBB-” by S&P or (B) any of the
Issuers’ other debt securities by any “nationally recognized statistical rating agency,” as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act, and no such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its ratings of the Notes or any of the
Issuers’ other debt securities.
(t) The Issuers, the Subsidiary Guarantors and the Trustee shall have executed and
delivered the Seventeenth Supplemental Indenture, and the Issuers shall have executed and
delivered the Global Note.
All such opinions, certificates, letters and other documents referred to in this Section 7
will be in compliance with the provisions hereof only if they are reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters. The Issuers shall furnish
to the Underwriters conformed copies of such opinions, certificates, letters and other documents in
such number as they shall reasonably request.
If any of the conditions specified in this Section 7 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be in all material respects
reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters,
this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any
time prior to, the Delivery Date by the Underwriters. Notice of such
cancellation shall be given to the Issuers in writing or by telephone or facsimile confirmed
in writing.
38
8.
Expenses
. The Issuers agree to pay the following costs and expenses and all other costs
and expenses incident to the performance by it of its obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), any Preliminary Prospectus, the Prospectus, any Issuer
Free Writing Prospectus and each amendment or supplement to any of them; (ii) the printing (or
reproduction) and delivery (including postage, air freight charges and charges for counting and
packaging) of such copies of the Registration Statement, any Preliminary Prospectus, any Issuer
Free Writing Prospectus, the Prospectus, the Incorporated Documents and all amendments or
supplements to any of them as may be reasonably requested for use in connection with the offering
and sale of the Notes; (iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Notes, including any stamp taxes in connection with the original issuance and
sale of the Notes; (iv) the printing (or reproduction) and delivery of this Agreement, the
preliminary and supplemental Blue Sky Memoranda, and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Notes; (v) any applicable listing
or other similar fees; (vi) the registration or qualification of the Notes for offer and sale under
the securities or Blue Sky laws of the several states as provided in Section 5(g) hereof (including
the reasonable fees, expenses and disbursements of counsel for the Underwriters relating to the
preparation, printing or reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) any filing fees in connection with any
filings required to be made with the Financial Industry Regulatory Authority, Inc.; (viii) the
transportation and other expenses incurred by or on behalf of officers and employees of GP LLC or
the Issuers in connection with presentations to prospective purchasers of the Notes; (ix) the fees
and expenses of the Partnership’s accountants and the fees and expenses of counsel (including local
and special counsel) for the Issuers and Guarantors; (x) any fees charged by rating agencies for
rating the Notes; and (xi) the fees and expenses of the Trustee and paying agent (including related
fees and expenses of any counsel for such parties).
It is understood, however, that except as otherwise provided in this Section 8 or Section 5(j)
hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on any resale of the Notes by any Underwriter, any advertising expenses
connected with any offers they may make and the transportation and other expenses incurred by the
Underwriters on their own behalf in connection with presentations to prospective purchasers of the
Notes.
9.
Default by an Underwriter
. If any one or more of the Underwriters shall fail or refuse
to purchase Notes that it or they are obligated to purchase hereunder on the Delivery Date, and the
aggregate principal amount of Notes that such defaulting Underwriter or Underwriters are obligated
but fail or refuse to purchase is not more than one-tenth of the aggregate principal amount of the
Notes that the Underwriters are obligated to purchase on the Delivery Date, each non-defaulting
Underwriter shall be obligated, severally, in the proportion that the principal amount of Notes set
forth opposite its name in
Schedule I
hereto bears to the aggregate principal amount of
Notes set forth opposite the names of all non-defaulting Underwriters or in such other proportion
as the Representatives may specify in accordance with the Agreement Among Underwriters of Wells
Fargo Securities, LLC, to purchase the Notes that such defaulting
39
Underwriter or Underwriters are obligated, but fail or refuse, to purchase. If any one or more of
the Underwriters shall fail or refuse to purchase Notes that it or they are obligated to purchase
on the Delivery Date and the aggregate principal amount of Notes with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of Notes that the Underwriters are
obligated to purchase on the Delivery Date and arrangements satisfactory to the Representatives and
the Issuers for the purchase of such Notes by one or more non-defaulting Underwriters or other
party or parties approved by the Representatives and the Issuers are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any party hereto
(other than any defaulting Underwriter). In any such case that does not result in termination of
this Agreement, either the Representatives or the Issuers shall have the right to postpone the
Delivery Date, but in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any such default of any such Underwriter under this Agreement. The term
“
Underwriter
” as used in this Agreement includes, for all purposes of this Agreement, any party not
listed in
Schedule I
hereto who, with the Representatives’ approval and the approval of the
Issuers, purchases Notes that a defaulting Underwriter is obligated, but fails or refuses, to
purchase.
Any notice under this Section 9 may be given by telegram, telecopy or telephone but shall be
subsequently confirmed by letter.
10.
Termination of Agreement
. This Agreement shall be subject to termination in the
Representatives’ absolute discretion, without liability on the part of any Underwriter to any
Plains Party, by notice to the Issuers prior to delivery of and payment for the Notes, if at any
time prior to such time (i) trading in the Partnership’s Common Units shall have been suspended by
the Commission or the NYSE or trading in securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended or limited or
minimum prices shall have been established; (ii) a banking moratorium shall have been declared
either by federal or New York or Texas state authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States or with respect to
Euroclear S.A./N.V. and Clearstream Banking, société anonyme, shall have occurred; or (iii) there
shall have occurred any outbreak or escalation of hostilities or acts of terrorism, declaration by
the United States of a national emergency or war or other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, the effect of which
on financial markets is such as to make it, in the sole judgment of the Underwriters, impractical
or inadvisable to proceed with the offering or delivery of the Notes as contemplated by the
Prospectus (exclusive of any amendment or supplement thereto). Notice of such termination may be
given to the Issuers by telegram, telecopy or telephone and shall be subsequently confirmed by
letter.
11.
Notice; Successors
. Except as otherwise provided in Sections 5, 9 and 10 hereof, all
communications hereunder will be in writing and effective only on receipt, and, if sent to the
Underwriters, will be mailed, delivered or telefaxed to the Representatives c/o Wells Fargo
Securities, LLC, 301 S. College Street, 6th Floor, Charlotte, NC 28288, Attention: Transaction
Management Department, Facsimile: (704) 383-9165; or, if sent to any of the Plains Parties, will
be mailed, delivered or telefaxed to (713) 646-4313 and confirmed to it at 333 Clay St., Suite
1600, Houston, Texas 77002, Attention: Tim Moore.
40
This Agreement has been and is made solely for the benefit of the several Underwriters, the
Plains Parties, their directors and officers, and the other controlling persons referred to in
Section 6 hereof and their respective successors and assigns, to the extent provided herein, and no
other person shall acquire or have any right under or by virtue of this Agreement. Neither the
term “successor” nor the term “successors and assigns” as used in this Agreement shall include a
purchaser from any Underwriter of any of the Notes in his status as such purchaser.
12.
Information Furnished by the Underwriters
. The statements set forth in the first
paragraph under “Underwriting — Commissions and discounts,” in the paragraph under “Underwriting —
Stabilization and short positions” in the Preliminary Prospectus and the Prospectus constitute the
only information furnished by or on behalf of the Underwriters through the Representatives as such
information is referred to in Sections 1(c), 1(d), 1(f), 1(g), 5(p), 6(a) and 6(c) hereof.
13.
Research Analyst Independence
. The Plains Parties acknowledge that the Underwriters’
research analysts and research departments are required to be independent from their respective
investment banking divisions and are subject to certain regulations and internal policies, and that
such Underwriters’ research analysts may hold views and make statements or investment
recommendations and/or publish research reports with respect to the Issuers and/or the offering
that differ from the views of their respective investment banking divisions. The Plains Parties
hereby waive and release, to the fullest extent permitted by law, any claims that the Plains
Parties may have against the Underwriters with respect to any conflict of interest that may arise
from the fact that the views expressed by their independent research analysts and research
departments may be different from or inconsistent with the views or advice communicated to the
Plains Parties by such Underwriters’ investment banking divisions. The Plains Parties acknowledge
that each of the Underwriters is a full service securities firm and as such from time to time,
subject to applicable securities laws, may effect transactions for its own account or the account
of its customers and hold long or short positions in debt or equity securities of the companies
that may be the subject of the transactions contemplated by this Agreement.
14.
Integration
. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Plains Parties and the Underwriters, or any of them, with
respect to the subject matter hereof.
15.
Headings
. The Section headings used herein are for convenience only and shall not
affect the construction hereof.
16.
Effective Date of Agreement
. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
17.
No Fiduciary Duty
. The Plains Parties acknowledge and agree that in connection with
this offering, sale of the Notes or any other services the Underwriters may be deemed to be
providing hereunder, notwithstanding any preexisting relationship, advisory or otherwise,
41
between the parties or any oral representations or assurances previously or subsequently made by
the Underwriters: (i) no fiduciary or agency relationship between the Plains Parties and any other
person, on the one hand, and the Underwriters, on the other hand, exists; (ii) the Underwriters are
not acting as advisors, expert or otherwise, to any of the Plains Parties, including, without
limitation, with respect to the determination of the public offering price of the Notes, and such
relationship between the Plains Parties, on the one hand, and the Underwriters, on the other, is
entirely and solely commercial, based on arms-length negotiations; (iii) any duties and obligations
that the Underwriters may have to the Plains Parties shall be limited to those duties and
obligations specifically stated herein; and (iv) the Underwriters and their respective affiliates
may have interests that differ from those of the Plains Parties. The Plains Parties hereby waive
any claims that they may have against the Underwriters with respect to any breach of fiduciary duty
in connection with this offering.
18.
Applicable Law; Counterparts
. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made and to be performed
within the State of New York. This Agreement may be signed in various counterparts that together
constitute one and the same instrument. If signed in counterparts, this Agreement shall not become
effective unless at least one counterpart hereof shall have been executed and delivered on behalf
of each party hereto.
[
Signature Pages Follow
]
42
Please confirm that the foregoing correctly sets forth the agreement among the Plains Parties
and the Underwriters.
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Very truly yours,
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PLAINS ALL AMERICAN PIPELINE, L.P.
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By:
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PAA GP LLC
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its General Partner
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By:
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PLAINS AAP, L.P.
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its Sole Member
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By:
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PLAINS ALL AMERICAN GP LLC
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its General Partner
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Senior Vice President and Chief
Financial Officer
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PAA FINANCE CORP.
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
1 of 8
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PLAINS MARKETING GP INC.
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Senior Vice President and Chief
Financial Officer
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PLAINS MARKETING, L.P.
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PLAINS PIPELINE, L.P.
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PLAINS MARKETING CANADA LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
2 of 8
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PLAINS LPG SERVICES GP LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PLAINS TOWING LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PICSCO LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
3 of 8
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PLAINS MIDSTREAM GP LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PLAINS MIDSTREAM, L.P.
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By:
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PLAINS MIDSTREAM GP LLC
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its General Partner
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PLAINS LPG SERVICES, L.P.
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By:
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PLAINS LPG SERVICES GP LLC
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its General Partner
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
4 of 8
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PLAINS PRODUCTS TERMINALS LLC
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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RANCHO LPG HOLDINGS LLC
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By:
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PLAINS LPG SERVICES, L.P.
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its Sole Member
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By:
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PLAINS LPG SERVICES GP LLC
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its General Partner
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
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Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
5 of 8
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LONE STAR TRUCKING, LLC
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By:
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PLAINS LPG SERVICES, L.P.
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its Sole Member
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By:
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PLAINS LPG SERVICES GP LLC
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its General Partner
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By:
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PLAINS MARKETING, L.P.
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its Sole Member
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By:
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PLAINS MARKETING GP INC.
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its General Partner
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By:
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/s/ Al Swanson
Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
6 of 8
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PACIFIC ENERGY GROUP LLC
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Senior Vice President and Chief
Financial Officer
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PACIFIC L.A. MARINE TERMINAL LLC
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By:
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PACIFIC ENERGY GROUP LLC
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its Sole Member
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By:
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/s/ Al Swanson
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Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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ROCKY MOUNTAIN PIPELINE SYSTEM LLC
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By:
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PACIFIC ENERGY GROUP LLC
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its Sole Member
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By:
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/s/ Al Swanson
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Name: Al Swanson
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Title: Senior Vice President and Chief
Financial Officer
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PAA Signature Page to Underwriting Agreement
7 of 8
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PLAINS MIDSTREAM CANADA ULC
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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AURORA PIPELINE COMPANY LTD.
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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PMC (NOVA SCOTIA) COMPANY
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By:
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/s/ Al Swanson
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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PLAINS MARKETING CANADA, L.P.
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By:
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PMC (NOVA SCOTIA) COMPANY
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its General Partner
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By:
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/s/ Al Swanson
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Name: Al Swanson
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Title: Vice President — Finance
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PAA Signature Page to Underwriting Agreement
8 of 8
The foregoing Agreement is hereby
confirmed and accepted by the Underwriters
as of the date first above written.
Wells Fargo Securities, LLC
Citigroup Global Markets Inc.
SunTrust Robinson Humphrey, Inc.
UBS Securities LLC
DnB NOR Markets, Inc.
Mitsubishi UFJ Securities (USA), Inc.
SG Americas Securities, LLC
BMO Capital Markets Corp.
Daiwa Securities America Inc.
ING Financial Markets LLC
Scotia Capital (USA) Inc.
U.S. Bancorp Investments, Inc.
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By:
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Wells Fargo Securities, LLC
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By:
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/s/ Carolyn C. Hurley
Name: Carolyn C. Hurley
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Title: Vice President
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By:
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Citigroup Global Markets Inc.
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By:
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/s/ Brian D. Bednarski
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Name: Brian D. Bednarski
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Title: Managing Director
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By:
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SunTrust Robinson Humphrey, Inc.
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By:
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/s/ Christopher S. Grumboski
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Name: Christopher S. Grumboski
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Title: Director
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Underwriters’ Signature Page to Underwriting Agreement
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By:
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UBS Securities LLC
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By:
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/s/ John Doherty
Name: John Doherty
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Title: Managing Director
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By:
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/s/ Christopher Fernando
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Name: Christopher Fernando
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Title: Associate Director
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Underwriters’ Signature Page to Underwriting Agreement
SCHEDULE I
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Principal Amount of
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Underwriters
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Notes to be Purchased
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Wells Fargo Securities, LLC
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$
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85,000,000
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Citigroup Global Markets Inc.
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85,000,000
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SunTrust Robinson Humphrey, Inc.
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85,000,000
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UBS Securities LLC
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85,000,000
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DnB NOR Markets, Inc.
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30,000,000
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Mitsubishi UFJ Securities (USA), Inc.
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30,000,000
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SG Americas Securities, LLC
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30,000,000
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BMO Capital Markets Corp.
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14,000,000
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Daiwa Securities America Inc.
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14,000,000
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ING Financial Markets LLC
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14,000,000
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Scotia Capital (USA) Inc.
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14,000,000
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U.S. Bancorp Investments, Inc.
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14,000,000
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Total
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$
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500,000,000
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Schedule I to Underwriting Agreement
SCHEDULE II
Filed Pursuant to Rule 433
Registration No. 333-155671
September 1, 2009
FINAL TERM SHEET
5.750% Senior Notes due January 15, 2020
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Issuers:
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Plains All American Pipeline, L.P. and PAA Finance Corp.
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Guarantee:
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Unconditionally guaranteed by certain subsidiaries of Plains All American Pipeline, L.P.
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Trade Date:
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September 1, 2009
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Expected Settlement Date:
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September 4, 2009
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Note Type:
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Senior Unsecured Notes
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Legal Format:
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SEC Registered
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Size:
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$500,000,000
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Maturity Date:
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January 15, 2020
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Coupon:
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5.750%
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Yield to Maturity:
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5.813%
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Interest Payment Dates:
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January 15 and July 15, commencing January 15, 2010
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Record Dates:
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January 1 and July 1
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Price to Public:
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99.523%
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Benchmark Treasury:
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UST 3.625% due August 15, 2019
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Spread to Benchmark Treasury:
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+245 bps
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Benchmark Treasury Yield:
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3.363%
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Make-Whole Call:
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T + 35 bps
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CUSIP:
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72650R AW2
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ISIN:
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US72650RAW25
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Ratings*:
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Baa3 (stable) by Moody’s Investors Service, Inc.
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BBB- (stable) by Standard & Poor’s Ratings Services
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Joint Book-Running Managers:
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Citigroup Global Markets Inc.
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SunTrust Robinson Humphrey, Inc.
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UBS Securities LLC
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Wells Fargo Securities, LLC
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Co-Managers:
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DnB NOR Markets, Inc.
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Mitsubishi UFJ Securities (USA), Inc.
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SG Americas Securities, LLC
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BMO Capital Markets Corp.
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Daiwa Securities America Inc.
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ING Financial Markets LLC
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Scotia Capital (USA) Inc.
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U.S. Bancorp Investments, Inc.
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*
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Note: A securities rating is not a recommendation to buy, sell or hold securities and
may be subject to revision or withdrawal at any time.
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Schedule II to Underwriting Agreement
The issuers have filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuers have filed with the SEC for more
complete information about the issuers and this offering. You may get these documents for free by
visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuers, any underwriter or
any dealer participating in the offering will arrange to send you the prospectus if you request it
by calling Citigroup Global Markets Inc. at 1-877-858-5407, SunTrust Robinson Humphrey, Inc. at
1-800-685-4786, UBS Securities LLC at 1-877-827-6444, ext. 561-3884 or Wells Fargo Securities, LLC
at 1-800-326-5897.
Use of Proceeds
We expect the net proceeds of this offering to be approximately $494 million after deducting the
underwriters’ discounts and commissions and our estimated offering expenses. We expect to use the
net proceeds from this offering to repay outstanding borrowings under our credit facilities, a
portion of which will have been incurred to fund the cash requirements of the PNGS Acquisition
(which will include repayment of all of PNGS’s debt). Amounts repaid under our credit facilities
may be reborrowed for general partnership purposes, including providing partial funding for the
potential redemption of our outstanding 7.13% senior notes due 2014.
Pro Forma Ratio of Earnings to Fixed Charges
Giving effect to our public offering of $500 million of senior notes in July 2009 and the
application of the net proceeds therefrom, the repayment of $175 million of 4.75% senior notes upon
maturity in August 2009 and this offering and the application of the net proceeds therefrom, as of
the beginning of each pro forma period presented, our ratio of earnings to fixed charges would have
been as follows:
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Pro Forma
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Year ended
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Six months ended
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December 31, 2008
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June 30, 2009
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Ratio of Earnings to Fixed
Charges
(1)
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2.48x
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3.20x
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(1)
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Includes interest costs attributable to borrowings for inventory stored in
a contango market of $15 million for the pro forma year ended December 31, 2008
and $2 million for the pro forma six months ended June 30, 2009.
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Revised Capitalization Disclosure
In the “As Adjusted for this Offering” column of the capitalization table on page S-12 of the
preliminary prospectus supplement, Cash and cash equivalents is $7 million, Hedged inventory
facility is $436 million, Working capital borrowings is $3 million, Other is $2 million, Total
short-term debt is $441 million, Long-term debt under credit facilities and other is $11 million,
7.13% Senior notes due 2014 is $250 million, Senior Notes offered hereby is $500 million,
Unamortized premium/(discount), net is $(9) million, Total long-term debt is $4,402 million and
Total capitalization is $8,200 million. Amounts repaid under our credit facilities may be
reborrowed for general partnership purposes, including providing partial funding for the potential
redemption of our outstanding 7.13% senior notes due 2014.
As of June 30, 2009, on a pro forma basis as described under “Capitalization,” and as further
adjusted to give effect to this offering and the application of the net proceeds therefrom as
described under “Use of proceeds,” the Notes and the guarantees would have been effectively
subordinated to $0.4 billion of short-term secured indebtedness.
Schedule II to Underwriting Agreement
SCHEDULE III
Domestic Subsidiaries
Plains Marketing GP Inc.
Plains Marketing, L.P.
Plains Pipeline, L.P.
Pacific Energy Group LLC
PAA Finance Corp.
Pacific L.A. Marine Terminal LLC
Rocky Mountain Pipeline System LLC
Plains Products Terminals LLC
Plains Towing LLC
Plains Marketing Canada LLC
Plains LPG Services GP LLC
PICSCO LLC
Plains LPG Services, L.P.
Plains Midstream GP LLC
Plains Midstream, L.P.
Lone Star Trucking, LLC
Rancho LPG Holdings LLC
Schedule III to Underwriting Agreement
SCHEDULE IV
Canadian Subsidiaries
Aurora Pipeline Company Ltd.
Plains Midstream Canada ULC
Plains Marketing Canada, L.P.
PMC (Nova Scotia) Company
Schedule IV to Underwriting Agreement
SCHEDULE V
Other Subsidiaries
CDM Max, LLC
Pacific Energy GP, LP
Pacific Energy Management LLC
Pacific Pipeline System LLC
Plains West Coast Terminals LLC
Plains Marketing Bondholder LLC
SLC Pipeline LLC
Schedule V to Underwriting Agreement
EXHIBIT A
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Entity
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Jurisdiction in which registered or qualified
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Plains All American Pipeline, L.P.
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Texas
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PAA GP LLC
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Texas
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Plains AAP, L.P.
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Texas
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Plains All American GP LLC
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California, Illinois, Louisiana, Oklahoma, Texas
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Plains Marketing GP Inc.
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California, Illinois, Louisiana, Oklahoma, Texas
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Plains Marketing, L.P.
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California, Illinois, Louisiana, Oklahoma
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Plains Pipeline, L.P.
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California, Illinois, Louisiana, Oklahoma
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Pacific Energy Group LLC
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California
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PAA Finance Corp.
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Texas
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Pacific L.A. Marine Terminal LLC
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None
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Rocky Mountain Pipeline System LLC
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Utah
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Plains Products Terminals LLC
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California
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Plains Towing LLC
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None
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Plains Marketing Canada LLC
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None
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Plains LPG Services GP LLC
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Illinois, Texas
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PICSCO LLC
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Louisiana, Texas
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Plains LPG Services, L.P.
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California, Illinois, Oklahoma, Texas
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Plains Midstream GP LLC
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None
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Plains Midstream, L.P.
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None
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Lone Star Trucking, LLC
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None
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Rancho LPG Holdings LLC
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California, Texas
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Aurora Pipeline Company Ltd.
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Alberta
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Plains Midstream Canada ULC
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None
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Plains Marketing Canada, L.P.
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Saskatchewan, California, Louisiana, Maryland, Michigan, North Dakota, Oklahoma, Texas
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PMC (Nova Scotia) Company
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Alberta, Saskatchewan
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PAA/Vulcan Gas Storage, LLC
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Texas
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Exhibit A to Underwriting Agreement
Exhibit 4.1
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
as Issuers
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Guarantors
$500,000,000
5.75% SENIOR NOTES DUE 2020
SEVENTEENTH
SUPPLEMENTAL
INDENTURE
Dated as of September 4, 2009
U.S. BANK NATIONAL ASSOCIATION
as Trustee
TABLE OF CONTENTS
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ARTICLE I
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2
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Section 1.01. Establishment
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2
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ARTICLE II DEFINITIONS AND INCORPORATION BY REFERENCE
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2
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Section 2.01. Definitions
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2
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Section 2.02. Other Definitions
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7
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ARTICLE III THE NOTES
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7
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Section 3.01. Form
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7
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Section 3.02. Issuance of Additional Notes
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7
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Section 3.03. Global Security Legend
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8
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ARTICLE IV REDEMPTION AND PREPAYMENT
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8
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Section 4.01. Optional Redemption
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8
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ARTICLE V COVENANTS
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8
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Section 5.01. Compliance Certificate
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8
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Section 5.02. Limitations on Liens
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9
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Section 5.03. Restriction of Sale-leaseback Transactions
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10
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Section 5.04. SEC Reports; Financial Statements
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11
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Section 5.05. Additional Subsidiary Guarantees
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12
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ARTICLE VI SUCCESSORS
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12
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Section 6.01. Consolidation and Mergers of the Issuers
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12
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Section 6.02. Rights and Duties of Successor
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12
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Section 6.03. Supplemental Indenture
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13
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ARTICLE VII DEFAULTS AND REMEDIES
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13
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Section 7.01. Events of Default
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13
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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15
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Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
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15
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Section 8.02. Legal Defeasance and Discharge
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15
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Section 8.03. Covenant Defeasance
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15
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Section 8.04. Conditions to Legal or Covenant Defeasance
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16
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Section 8.05. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions
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17
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Section 8.06. Repayment to Issuers
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18
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Section 8.07. Reinstatement
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18
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ARTICLE IX SUBSIDIARY GUARANTEES
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18
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Section 9.01. Subsidiary Guarantees
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18
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Section 9.02. Limitation on Liability
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20
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Section 9.03. Successors and Assigns
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20
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-i-
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Section 9.04. No Waiver
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20
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Section 9.05. Modification
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20
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Section 9.06. Execution of Supplemental Indenture for Future Subsidiary Guarantors
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21
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Section 9.07. Release of Guarantee
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21
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ARTICLE X MISCELLANEOUS
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21
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Section 10.01. Additional Amendments
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21
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Section 10.02. Integral Part
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22
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Section 10.03. Adoption, Ratification and Confirmation
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22
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Section 10.04. Counterparts
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22
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Section 10.05. Governing Law
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22
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EXHIBIT A: Form of Note
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EXHIBIT B: Form of Supplemental Indenture
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-ii-
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SEVENTEENTH SUPPLEMENTAL INDENTURE dated as of September 4, 2009 (this “Supplemental
Indenture”) among PLAINS ALL AMERICAN PIPELINE, L.P., a Delaware limited partnership (the
“Partnership”), PAA FINANCE CORP., a wholly owned subsidiary of the Partnership and a Delaware
corporation (“PAA Finance” and, together with the Partnership, the “Issuers”), and the subsidiary
guarantors signatory hereto (the “Subsidiary Guarantors”), and U.S. BANK NATIONAL ASSOCIATION, as
trustee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Issuers have heretofore entered into an Indenture, dated as of September 25, 2002
(the “Original Indenture”), with U.S. Bank National Association (successor to Wachovia Bank,
National Association), as trustee;
WHEREAS, the Original Indenture, as supplemented by this Supplemental Indenture, is herein
called the “Indenture;”
WHEREAS, under the Original Indenture, a new series of Debt Securities may at any time be
established by the Boards of Directors of the Managing General Partner and PAA Finance in
accordance with the provisions of the Original Indenture and the form and terms of such series may
be established by a supplemental indenture executed by the Issuers and the Trustee;
WHEREAS, also under the Original Indenture, guarantors with respect to a series of Debt
Securities may be added as parties to the Indenture by a supplemental indenture executed by
themselves, the Issuers and the Trustee;
WHEREAS, the Issuers propose to create under the Indenture a new series of Debt Securities,
such series to be guaranteed by the Subsidiary Guarantors;
WHEREAS, additional Debt Securities of other series hereafter established, except as may be
limited in the Original Indenture as at the time supplemented and modified, may be issued from time
to time pursuant to the Original Indenture as at the time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and delivery of this Supplemental
Indenture and to make it a valid and binding obligation of the Issuers and the Subsidiary
Guarantors have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for
other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
Section 1.01.
Establishment
. (a) There is hereby established a new series of Debt Securities to be issued under the
Indenture, to be designated as the Issuers’ 5.75% Senior Notes due 2020 (the “Notes”).
(b) There are to be authenticated and delivered $500,000,000 principal amount of Notes on the
Issue Date, and from time to time thereafter there may be authenticated and delivered an unlimited
principal amount of Additional Notes.
(c) The Notes shall be issued initially in the form of one or more Global Securities in
substantially the form set out in Exhibit A hereto. The Depositary with respect to the Notes shall
be The Depository Trust Company.
(d) Each Note shall be dated the date of authentication thereof and shall bear interest from
the date of original issuance thereof or from the most recent date to which interest has been paid
or duly provided for.
(e) If and to the extent that the provisions of the Original Indenture are duplicative of, or
in contradiction with, the provisions of this Supplemental Indenture, the provisions of this
Supplemental Indenture shall govern.
ARTICLE II
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 2.01.
Definitions
. All capitalized terms used herein and not otherwise defined below shall have the meanings
ascribed thereto in the Original Indenture. The following are additional definitions used in this
Supplemental Indenture:
“Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, “control,” as used with respect to any Person, shall mean the
possession directly or indirectly of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities, by agreement or
otherwise; and the terms “controlling,” “controlled by” and “under common control with” shall have
correlative meanings.
“Attributable Indebtedness,” when used with respect to any Sale-leaseback Transaction, means,
as at the time of determination, the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such transaction) of the total obligations of the lessee for
rental payments (other than amounts required to be paid on account of property taxes, maintenance,
repairs, insurance, assessments, utilities, operating and labor costs and other items that do not
constitute payments for property rights) during the remaining term of the lease included in such
Sale-leaseback Transaction (including any period for which such lease has been
extended). In the case of any lease that is terminable by the lessee upon the payment of a
penalty or other termination payment, such amount shall be the lesser of the amount determined
assuming termination upon the first date such lease may be terminated (in which case the amount
2
shall also include the amount of the penalty or termination payment, but no rent shall be
considered as required to be paid under such lease subsequent to the first date upon which it may
be so terminated) or the amount determined assuming no such termination.
“Capital Interests” means any and all shares, interests, participations, rights or other
equivalents (however designated) of capital stock, including, without limitation, with respect to
partnerships, partnership interests (whether general or limited) and any other interest or
participation that confers on a Person the right to receive a share of the profits and losses of,
or distributions of assets of, such Person.
“Consolidated Net Tangible Assets” means, at any date of determination, the total amount of
assets after deducting therefrom: (1) all current liabilities (excluding (a) any current
liabilities that by their terms are extendible or renewable at the option of the obligor thereon to
a time more than 12 months after the time as of which the amount thereof is being computed; and (b)
current maturities of long-term debt); and (2) the amount, net of any applicable reserves, of all
goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth on
the consolidated balance sheet of the Partnership for its most recently completed fiscal quarter,
prepared in accordance with GAAP.
“Debt” means any obligation created or assumed by any Person for the repayment of money
borrowed, any purchase money obligation created or assumed by such Person, and any guarantee of the
foregoing.
“Funded Debt” means all Debt maturing one year or more from the date of the creation thereof,
all Debt directly or indirectly renewable or extendible, at the option of the debtor, by its terms
or by the terms of any instrument or agreement relating thereto, to a date one year or more from
the date of the creation thereof, and all Debt under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period of one year or more.
“Guarantee” means a guarantee of the Notes given by a Subsidiary Guarantor pursuant to the
Indenture, including all obligations under Article IX hereof.
“General Partner” means PAA GP LLC, a Delaware limited liability company, and its successors
and permitted assigns as general partner of the Partnership.
“Issue Date” means, with respect to the Notes, the date on which the Notes are initially
issued.
“Managing General Partner” means (i) Plains All American GP LLC, a Delaware limited liability
company, and its successors and permitted assigns as the general partner of the sole member of the
General Partner or (ii) the business entity with the ultimate authority to manage the business and
operations of the Partnership.
“Notes” has the meaning assigned to it in Section 1.01(a) hereof, and includes both the Notes
issued on the Issue Date and any Additional Notes issued thereafter.
3
“Obligations” means any principal, interest, liquidated damages, penalties, fees,
indemnifications, reimbursement obligations, damages and other liabilities payable under the
documentation governing any Debt.
“Pari Passu Debt” means any Funded Debt of either of the Issuers, whether outstanding on the
Issue Date or thereafter created, incurred or assumed, unless, in the case of any particular Funded
Debt, the instrument creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Funded Debt shall be subordinated in right of payment to the Notes.
“Partnership Agreement” means the Third Amended and Restated Agreement of Limited Partnership
of Plains All American Pipeline, L.P., amended and restated effective as of June 27, 2001, as
amended by Amendment No. 1 thereto dated as of April 15, 2004, Amendment No. 2 thereto dated as of
November 15, 2006, Amendment No. 3 thereto dated as of August 16, 2007, Amendment No. 4 thereto
dated April 14, 2008, to be effective as of January 1, 2007, Amendment No. 5 thereto dated as of
May 28, 2008, Amendment No. 6 thereto dated as of September 3, 2009 and as such may be otherwise
amended, modified or supplemented from time to time.
“Permitted Liens” means:
(1) Liens upon rights-of-way for pipeline purposes;
(2) any statutory or governmental Lien or Lien arising by operation of law, or any
mechanics’, repairmen’s, materialmen’s, suppliers’, carriers’, landlords’, warehousemen’s or
similar Lien incurred in the ordinary course of business which is not yet due or which is
being contested in good faith by appropriate proceedings and any undetermined Lien which is
incidental to construction, development, improvement or repair;
(3) the right reserved to, or vested in, any municipality or public authority by the
terms of any right, power, franchise, grant, license, permit or by any provision of law, to
purchase or recapture or to designate a purchaser of, any property;
(4) Liens of taxes and assessments which are (A) for the then current year, (B) not at
the time delinquent, or (C) delinquent but the validity of which is being contested at the
time by an Issuer or any Restricted Subsidiary in good faith;
(5) Liens of, or to secure performance of, leases, other than capital leases;
(6) any Lien upon, or deposits of, any assets in favor of any surety company or clerk
of court for the purpose of obtaining indemnity or stay of judicial proceedings;
(7) any Lien upon property or assets acquired or sold by an Issuer or any Restricted
Subsidiary resulting from the exercise of any rights arising out of defaults on receivables;
4
(8) any Lien incurred in the ordinary course of business in connection with worker’s
compensation, unemployment insurance, temporary disability, social security, retiree health
or similar laws or regulations or to secure obligations imposed by statute or governmental
regulations;
(9) any Lien in favor of an Issuer or any Restricted Subsidiary;
(10) any Lien in favor of the United States of America or any state thereof, or any
department, agency or instrumentality or political subdivision of the United States of
America or any state thereof, to secure partial, progress, advance, or other payments
pursuant to any contract or statute, or any Debt incurred by an Issuer or any Restricted
Subsidiary for the purpose of financing all or any part of the purchase price of, or the
cost of constructing, developing, repairing or improving, the property or assets subject to
such Lien;
(11) any Lien securing industrial development, pollution control or similar revenue
bonds;
(12) any Lien securing Debt of an Issuer or any Restricted Subsidiary, all or a portion
of the net proceeds of which are used, substantially concurrently with the funding thereof
(and for purposes of determining such “substantial concurrence,” taking into consideration,
among other things, required notices to be given to Holders of Outstanding Debt Securities
(including the Notes) in connection with such refunding, refinancing or repurchase, and the
required corresponding durations thereof), to refinance, refund or repurchase all
Outstanding Debt Securities (including the Notes), including the amount of all accrued
interest thereon and reasonable fees and expenses and premium, if any, incurred by the
Issuers or any Restricted Subsidiary in connection therewith;
(13) Liens in favor of any Person to secure obligations under the provisions of any
letters of credit, bank guarantees, bonds or surety obligations required or requested by any
governmental authority in connection with any contract or statute;
(14) any Lien upon or deposits of any assets to secure performance of bids, trade
contracts, leases or statutory obligations;
(15) any Lien or privilege vested in any grantor, lessor or licensor or permittor for
rent or other charges due or for any other obligations or acts to be performed, the payment
of which rent or other charges or performance of which other obligations or acts is required
under leases, easements, rights-of-way, licenses, franchises, privileges, grants or permits,
so long as payment of such rent or the performance of such other obligations or acts is not
delinquent or the requirement for such payment or performance is being contested in good
faith by appropriate proceedings;
(16) easements, exceptions or reservations in any property of the Partnership or any of
the Restricted Subsidiaries granted or reserved for the purpose of pipelines, roads, the
removal of oil, gas, coal or other minerals, and other like purposes for the joint or common
use of real property, facilities and equipment, which are incidental to, and do
5
not
materially interfere with, the ordinary conduct of its business or the business of the
Partnership and its Subsidiaries, taken as a whole;
(17) Liens arising under operating agreements, joint venture agreements, partnership
agreements, oil and gas leases, farmout agreements, division orders, contracts for sale,
transportation or exchange of oil and natural gas, unitization and pooling declarations and
agreements, area of mutual interest agreements and other agreements arising in the ordinary
course of the Partnership’s or any Restricted Subsidiary’s business that are customary in
the business of marketing, transportation and terminalling of crude oil and/or marketing of
liquefied petroleum gas; or
(18) any obligations or duties to any municipality or public authority with respect to
any lease, easement, right-of-way, license, franchise, privilege, permit or grant.
“Principal Property” means, whether owned or leased on the Issue Date or thereafter acquired:
(1) any of the pipeline assets of the Partnership or the pipeline assets of any Subsidiary of the
Partnership, including any related facilities employed in the transportation, distribution,
terminalling, gathering, treating, processing, marketing or storage of crude oil or refined
petroleum products, natural gas, natural gas liquids, fuel additives or petrochemicals, and (2) any
processing or manufacturing plant or terminal owned or leased by the Partnership or any Subsidiary
of the Partnership; except, in the case of either clause (1) or (2), (a) any such assets consisting
of inventories, furniture, office fixtures and equipment, including data processing equipment,
vehicles and equipment used on, or useful with, vehicles, and (b) any such assets, plant or
terminal which, in the good faith opinion of the Board of Directors, is not material in relation to
the activities of the Partnership or the activities of the Partnership and its Subsidiaries, taken
as a whole.
“Restricted Subsidiary” means any Subsidiary of the Partnership owning or leasing, directly or
indirectly through ownership in another Subsidiary, any Principal Property.
“Sale-leaseback Transaction” means the sale or transfer by an Issuer or any Subsidiary of the
Partnership of any Principal Property to a Person (other than an Issuer or a Subsidiary of the
Partnership) and the taking back by an Issuer or any Subsidiary of the Partnership, as the case may
be, of a lease of such Principal Property.
“Subsidiary” means, with respect to any Person: (1) any other Person of which more than 50% of
the total voting power of shares or other Capital Interests entitled, without regard to the
occurrence of any contingency, to vote in the election of directors, managers or trustees
(or equivalent persons) thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person or a combination thereof; or (2) in
the case of a partnership, more than 50% of the partners’ Capital Interests, considering all
partners’ Capital Interests as a single class, is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of such Person or a
combination thereof.
6
“Subsidiary Guarantors” means each of:
(1) the Subsidiaries of the Partnership named as the “Subsidiary Guarantors” on the
signature pages of this Supplemental Indenture;
(2) any other Subsidiary that executes a supplemental Indenture to provide a Guarantee
in accordance with the provisions of the Indenture; and
(3) their respective successors and assigns.
Notwithstanding anything in the Indenture to the contrary, PAA Finance, PAA/Vulcan Gas Storage, LLC
and its Subsidiaries, Pacific Pipeline System LLC, Plains West Coast Terminals LLC, Pacific Energy
Management LLC, Pacific Energy GP, LP, SLC Pipeline LLC, Plains Marketing Bondholder, LLC and CDM
Max, LLC shall not be Subsidiary Guarantors.
Section 2.02.
Other Definitions
.
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Defined in
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Term
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Section
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“Additional Notes”
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3.02
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“Covenant Defeasance”
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8.03
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“Event of Default”
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7.01
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“Legal Defeasance”
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8.02
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“Note Obligations”
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9.01
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“Payment Default
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7.01
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“Required Filing Dates”
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5.04
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“Successor Company”
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6.01
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ARTICLE III
THE NOTES
Section 3.01.
Form
. The Notes shall be issued initially in the form of one or more Global Securities. The Notes and
Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto, the
terms of which are incorporated in and made a part of this Supplemental Indenture, and the Issuers
and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Section 3.02.
Issuance of Additional Notes
. The Issuers may, from time to time, issue an unlimited amount of additional Notes (“Additional
Notes”) under the Indenture, which shall be issued in the same form as the Notes issued on the
Issue Date and which shall have identical terms as the Notes issued on the Issue Date other than
with respect to the issue date, the date of first payment of interest, if applicable, and the
payment of interest accruing prior to the issue date. The Notes issued on the Issue Date shall be
limited in aggregate principal amount to $500,000,000. The Notes issued on the Issue Date and any
Additional Notes subsequently
7
issued shall be treated as a single series for all purposes under the
Indenture, including waivers, amendments, redemptions and offers to purchase.
Section 3.03.
Global Security Legend
. Each of the Global Securities shall bear a legend in substantially the following form:
THIS GLOBAL SECURITY IS HELD BY OR ON BEHALF OF THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.08 OF THE ORIGINAL INDENTURE, (B) THIS
GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.15 OF THE ORIGINAL
INDENTURE, (C) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.10 OF THE ORIGINAL INDENTURE AND (D) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY OR ITS NOMINEE WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.
ARTICLE IV
REDEMPTION AND PREPAYMENT
Section 4.01.
Optional Redemption
.
(a) At their option at any time prior to maturity, the Issuers may choose to redeem all or any
portion of the Notes, at once or from time to time.
(b) To redeem the Notes, the Issuers must pay a redemption price in an amount determined in
accordance with the provisions of paragraph number 5 of the form of Note in Exhibit A hereto, plus
accrued and unpaid interest, if any, to the redemption date (subject to the right of Holders on the
relevant record date to receive interest due on the relevant interest payment date).
(c) Any redemption pursuant to this Section 4.01 shall otherwise be made pursuant to the
provisions of Sections 3.01 through 3.03 of the Original Indenture. The actual redemption price
shall be set forth in an Officers’ Certificate delivered to the Trustee no later than two Business
Days prior to each redemption date.
ARTICLE V
COVENANTS
Section 5.01.
Compliance Certificate
. (a) In lieu of the Officers’ Certificate required by Section 4.05 of the Original Indenture,
the Issuers and Subsidiary Guarantors shall deliver to the Trustee, within 90 days after the end of
each fiscal year, an Officers’ Certificate stating that a review of the activities of the
Partnership and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers (one of whom shall be the principal executive, financial or
accounting officer of each Issuer and Subsidiary Guarantor)
8
with a view to determining whether the
Issuers have kept, observed, performed and fulfilled their obligations under the Indenture, and
further stating, as to each such person signing such certificate, that to the best of his or her
knowledge the Issuers have kept, observed, performed and fulfilled each and every covenant
contained in the Indenture and are not in default in the performance or observance of any of the
terms, provisions and conditions of the Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Issuers are taking or propose to take with respect thereto).
(b) The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith and in any event within five days upon any officer of an Issuer becoming aware of any
Default or Event of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate specifying such Default or Event of
Default and what action the Issuers are taking or propose to take with respect thereto.
Section 5.02.
Limitations on Liens
. The Issuers will not, nor will they permit any Subsidiary of the Partnership to, create, assume,
incur or suffer to exist any Lien upon any Principal Property or upon any Capital Interests of any
Restricted Subsidiary, whether owned or leased on the Issue Date or thereafter acquired, to secure
any Debt of an Issuer or any other Person (other than Debt Securities), without in any such case
making effective provision whereby all of the Notes shall be secured equally and ratably with, or
prior to, such Debt so long as such Debt shall be so secured. This restriction shall not apply to:
(a) Permitted Liens;
(b) any Lien upon any property or assets created at the time of acquisition of such property
or assets by an Issuer or any Restricted Subsidiary or within one year after such time to secure
all or a portion of the purchase price for such property or assets or Debt incurred to finance such
purchase price, whether such Debt was incurred prior to, at the time of or within one year after
the date of such acquisition;
(c) any Lien upon any property or assets to secure all or part of the cost of construction,
development, repair or improvements thereon or to secure Debt incurred prior to, at the time of, or
within one year after completion of such construction, development, repair or
improvements or the commencement of full operations thereof (whichever is later), to provide
funds for any such purpose;
(d) any Lien upon any property or assets existing thereon at the time of the acquisition
thereof by an Issuer or any Restricted Subsidiary (whether or not the obligations secured thereby
are assumed by an Issuer or any Restricted Subsidiary); provided, however, that such Lien only
encumbers the property or assets so acquired;
(e) any Lien upon any property or assets of a Person existing thereon at the time such Person
becomes a Restricted Subsidiary by acquisition, merger or otherwise; provided, however, that such
Lien only encumbers the property or assets of such Person at the time such Person becomes a
Restricted Subsidiary;
9
(f) any Lien upon any property or assets of an Issuer or any Restricted Subsidiary in
existence on December 10, 2003 or provided for pursuant to agreements existing on December 10,
2003;
(g) Liens imposed by law or order as a result of any proceeding before any court or regulatory
body that is being contested in good faith, and Liens which secure a judgment or other
court-ordered award or settlement as to which an Issuer or the applicable Restricted Subsidiary, as
the case may be, has not exhausted its appellate rights;
(h) any extension, renewal, refinancing, refunding or replacement (or successive extensions,
renewals, refinancings, refundings or replacements) of Liens, in whole or in part, referred to in
clauses (a) through (g), inclusive, of this Section 5.02; provided, however, that any such
extension, renewal, refinancing, refunding or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed, refinanced, refunded or replaced and that the
obligations secured by any such extension, renewal, refinancing, refunding or replacement Lien
shall be in an amount not greater than the amount of the obligations secured by the Lien extended,
renewed, refinanced, refunded or replaced and any expenses of the Issuers and the Restricted
Subsidiaries (including any premium) incurred in connection with such extension, renewal,
refinancing, refunding or replacement; or
(i) any Lien resulting from the deposit of moneys or evidence of indebtedness in trust for the
purpose of defeasing Debt of an Issuer or any Restricted Subsidiary.
Notwithstanding the foregoing provisions of this Section 5.02, the Issuers may, and may permit
any Restricted Subsidiary to, create, assume, incur or suffer to exist any Lien upon any Principal
Property or Capital Interests of a Restricted Subsidiary to secure Debt of an Issuer or any Person
(other than Debt Securities) that is not excepted by clauses (a) through (i), inclusive, of this
Section 5.02 without securing the Notes, provided that the aggregate principal amount of all Debt
then outstanding secured by such Lien and all other Liens not excepted by clauses (a) through (i),
inclusive, of this Section 5.02, together with all Attributable Indebtedness from Sale-leaseback
Transactions (excluding Sale-leaseback Transactions permitted by clauses (a) through (d),
inclusive, of Section 5.03), does not exceed 10% of Consolidated Net Tangible Assets.
Section 5.03.
Restriction of Sale-leaseback Transactions
. The Issuers will not, and will not permit any Subsidiary of the Partnership to, engage in a
Sale-leaseback Transaction, unless:
(a) such Sale-leaseback Transaction occurs within one year from the date of completion of the
acquisition of the Principal Property subject thereto or the date of the completion of
construction, development or substantial repair or improvement, or commencement of full operations
on such Principal Property, whichever is later;
(b) the Sale-leaseback Transaction involves a lease for a period, including renewals, of not
more than three years;
10
(c) the Attributable Indebtedness from that Sale-leaseback Transaction is an amount equal to
or less than the amount the Issuers or such Subsidiary would be allowed to incur as Debt secured by
a Lien on the Principal Property subject thereto without equally and ratably securing the Notes
under Section 5.02; or
(d) the Issuers or such Subsidiary, within a one-year period after such Sale-leaseback
Transaction, applies or causes to be applied an amount not less than the net sale proceeds from
such Sale-leaseback Transaction to (A) the prepayment, repayment, redemption, reduction or
retirement of any Pari Passu Debt of an Issuer or any Subsidiary of the Partnership, or (B) the
expenditure or expenditures for Principal Property used or to be used in the ordinary course of
business of the Partnership or its Subsidiaries.
Notwithstanding the foregoing provisions of this Section 5.03, the Issuers may, and may permit
any Subsidiary of the Partnership to, effect any Sale-leaseback Transaction that is not excepted by
clauses (a) through (d), inclusive, of this Section 5.03, provided that the Attributable
Indebtedness from such Sale-leaseback Transaction, together with the aggregate principal amount of
then outstanding Debt (other than Debt Securities) secured by Liens upon Principal Properties not
excepted by clauses (a) through (i), inclusive, of Section 5.02, does not exceed 10% of
Consolidated Net Tangible Assets.
Section 5.04.
SEC Reports; Financial Statements
.
(a) Whether or not the Partnership is then subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, the Partnership shall electronically file with the Commission, so
long as the Notes are Outstanding, the annual, quarterly and other periodic reports that the
Partnership is required to file (or would otherwise be required to file) with the Commission
pursuant to Sections 13 and 15(d) of the Exchange Act, and such documents shall be filed with the
Commission on or prior to the respective dates (the “Required Filing Dates”) by which the
Partnership is required to file (or would otherwise be required to file) such documents, unless, in
each case, such filings are not then permitted by the Commission.
(b) If such filings are not then permitted by the Commission, or such filings are not
generally available on the Internet free of charge, the Issuers shall provide the Trustee with, and
the Trustee will mail to any Holder of Notes requesting in writing to the Trustee copies of, such
annual, quarterly and other periodic reports specified in Sections 13 and 15(d) of the Exchange Act
within 15 days after the respective Required Filing Dates.
(c) [Intentionally omitted.]
(d) The Partnership shall provide the Trustee with a sufficient number of copies of all
reports and other documents and information that the Trustee may be required to deliver to Holders
of Notes under clause (b) of this Section 5.04.
(e) Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein,
11
including the
Partnership’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on Officers’ Certificates).
Section 5.05.
Additional Subsidiary Guarantees
. If any Subsidiary (or its successor) of the Partnership that is not then a Subsidiary Guarantor
guarantees Debt of either of the Issuers or any other Subsidiary of the Partnership, in either case
after the Issue Date, then such Subsidiary (or successor) shall execute and deliver a supplemental
Indenture providing for the guarantee of the payment of the Notes pursuant to Article IX hereof.
ARTICLE VI
SUCCESSORS
With respect to the Notes, the provisions of this Article VI shall preempt the provisions of
Article X of the Original Indenture in their entirety.
Section 6.01.
Consolidation and Mergers of the Issuers
. Neither Issuer shall consolidate or amalgamate with or merge with or into any Person, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all its assets to any Person,
whether in a single transaction or a series of related transactions, except (1) in accordance with
the provisions of the Partnership Agreement, and (2) unless: (a) either (i) such Issuer shall be
the surviving Person in the case of a merger or (ii) the resulting, surviving or transferee Person
if other than such Issuer (the “Successor Company”) shall be a partnership, limited liability
company or corporation organized and existing under the laws of the United States, any state
thereof or the District of Columbia (provided that PAA Finance may not merge, amalgamate or
consolidate with or into another Person other than a corporation satisfying such requirement for so
long as the Partnership is not a corporation) and the Successor Company shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, the due and punctual payment of the principal of, premium, if any, and
interest on all of the Notes, and the due and punctual performance or observance of all the other
obligations under the Indenture to be performed or observed by such Issuer; (b) immediately after
giving effect to such transaction or series of transactions, no Default or Event of Default would
occur or be continuing; (c) if such Issuer is not the continuing Person, then each Subsidiary
Guarantor, unless it has become the Successor Company, shall confirm that its Guarantee shall
continue to apply to the obligations under the Notes and the Indenture; and (d) such Issuer shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that
such consolidation, amalgamation, merger, sale, conveyance, transfer, lease or other disposition
and such supplemental Indenture (if any) comply with this Section 6.01 and any other applicable
provisions of the Indenture.
Section 6.02.
Rights and Duties of Successor
. In case of any consolidation, amalgamation or merger where an Issuer is not the continuing
Person, or disposition of all or substantially all of the assets of an Issuer in accordance with
Section 6.01, the Successor Company shall succeed to and be substituted for such Issuer with the
same effect as if it had been named herein as the respective party to the Indenture, and the
predecessor entity shall be released from all liabilities and obligations under the Indenture and
the Notes, except that no such release will occur in the case of a lease of all or substantially
all of an Issuer’s assets. In case of any such consolidation, amalgamation, merger, sale,
conveyance, transfer, lease or other
12
disposition, such changes in phraseology and form (but not in
substance) may be made in the Notes thereafter to be issued as may be appropriate.
Section 6.03.
Supplemental Indenture
. Section 9.01 of the Original Indenture is hereby amended, with respect to the Notes, by adding
the words “or the confirmation of a Subsidiary Guarantor’s” immediately after the word “Issuer’s”
in Section 9.01(c).
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01.
Events of Default
. With respect to the Notes, the provisions of this Section 7.01 shall preempt the provisions of
the first and final paragraphs of Section 6.01 of the Original Indenture in their entirety.
(a) An “Event of Default” occurs if:
(i) the Issuers default for 60 days in the payment when due of interest on the
Notes;
(ii) the Issuers default in the payment when due of principal of or premium, if
any, on the Notes at maturity, upon redemption or otherwise;
(iii) failure by an Issuer or any Subsidiary Guarantor for 90 days after
receipt of notice by the Issuers from the Trustee or to the Issuers and the Trustee
by the Holders of at least 25% in principal amount of the Notes then Outstanding to
comply with any other term, covenant or warranty in the Indenture or the Notes
(
provided
that notice need not be given, and an Event of Default shall
occur, 90 days after any breach of the provisions of Section 6.01 hereof);
(iv) default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Debt of an Issuer or any
of the Partnership’s Subsidiaries (or the payment of which is guaranteed by the
Partnership or any of its Subsidiaries), whether such Debt or guarantee now exists
or is created after the Issue Date, if that default (A) is caused by a failure to
pay principal of or premium, if any, or interest on such Debt prior to the
expiration of the grace period provided in such Debt (a “Payment Default”) or (B)
results in the acceleration of the maturity of such Debt to a date prior to its
originally stated maturity, and, in each case described in clause (A) or (B), the
principal amount of any such Debt, together with the principal amount of any other
such Debt under which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $25.0 million or more;
provided
,
further
,
that if any such default is cured or waived or any such
acceleration rescinded, or such Debt is repaid, within a period of 30 days from the
continuation of such default beyond the applicable grace period or the occurrence of
such acceleration, as the case may be, such Event of Default and any consequential
acceleration of the Notes shall be automatically rescinded, so long as such
rescission does not conflict with any judgment or decree;
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(v) except as permitted by the Indenture, any Guarantee shall cease for any
reason to be in full force and effect (except as otherwise provided in the
Indenture) or is declared null and void in a judicial proceeding or any Subsidiary
Guarantor, or any Person acting on behalf of any Subsidiary Guarantor, shall deny or
disaffirm its obligations under the Indenture or its Guarantee;
(vi) an Issuer or any Subsidiary Guarantor pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due; or
(vii) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(A) is for relief against an Issuer or any Subsidiary Guarantor in an
involuntary case;
(B) appoints a custodian of an Issuer or any Subsidiary Guarantor or
for all or substantially all of the property of an Issuer or any Subsidiary
Guarantor; or
(C) orders the liquidation of an Issuer or any Subsidiary Guarantor;
and the order or decree remains unstayed and in effect for 60 consecutive days.
(b) In the case of an Event of Default arising from Section 7.01(a)(vi) or 7.01(a)(vii) hereof
involving an Issuer (and, for the avoidance of doubt, excluding any such Event of Default that
involves only one or more Subsidiary Guarantors), the principal amount of all Outstanding Notes and
interest thereon shall become due and payable immediately without further action or notice. If any
other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then Outstanding Notes may declare the principal amount of all the Notes
and interest thereon to be due and payable immediately by a notice in writing to the Issuers (and
to the Trustee if given by the Holders) and upon any such declaration such principal amount and
interest thereon shall be due and payable immediately.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01.
Option to Effect Legal Defeasance or Covenant Defeasance
. The Issuers may, at the option of the Boards of Directors evidenced by a Board Resolution set
forth in an Officers’ Certificate, at any time, elect to have either Section 8.02 or 8.03 hereof be
applied to all outstanding Notes and Guarantees upon compliance with the conditions set forth below
in this Article VIII.
Section 8.02.
Legal Defeasance and Discharge
. Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section
8.02, each of the Issuers and the Subsidiary Guarantors shall, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, be deemed to have been discharged from its obligations
with respect to all outstanding Notes and Guarantees on the date the conditions set forth below are
satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that each of
the Issuers shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be “Outstanding” only for the purposes of
Section 8.05 hereof and the other Sections of the Indenture referred to in (a) and (b) below, and
to have satisfied all its other obligations under such Notes and the Indenture, and each of the
Subsidiary Guarantors shall be deemed to have discharged its obligations under its Guarantee (and
the Trustee, on demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders of Outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments in respect of the
principal of, premium on, if any, and interest on such Notes when such payments are due,
(b) the Issuers’ obligations with respect to such Notes under Sections 2.07, 2.08, 2.09 and
4.02 of the Original Indenture,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuers’ obligations in connection therewith,
(d) this Article VIII, and
(e) the Issuers’ rights of optional redemption under Section 4.01 hereof.
Subject to compliance with this Article VIII, the Issuers may exercise their option under this
Section 8.02 notwithstanding the prior exercise of their option under Section 8.03 hereof.
Section 8.03.
Covenant Defeasance
. Upon the Issuers’ exercise under Section 8.01 hereof of the option applicable to this Section
8.03, each of the Issuers shall, subject to the satisfaction of the conditions set forth in Section
8.04 hereof, be released from its obligations under the covenants contained in Sections 5.02, 5.03,
5.04 and 5.05 hereof with respect to the Outstanding Notes on and after the date the conditions set
forth in Section 8.04 are satisfied
15
(hereinafter, “Covenant Defeasance”), and the Notes shall
thereafter be deemed not “Outstanding” for the purposes of any direction, waiver, consent or
declaration or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed “Outstanding” for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the Outstanding Notes, the Issuers may
omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 7.01 hereof, but, except as specified above, the
remainder of the Indenture, the Guarantees and such Notes shall be unaffected thereby.
Section 8.04.
Conditions to Legal or Covenant Defeasance
. The following shall be the conditions to the application of either Section 8.02 or 8.03 hereof
to the Outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of the
Holders of the Notes, cash in Dollars, U.S. Government Obligations, or a combination thereof, in
such amounts as shall be sufficient, in the written opinion of a nationally
recognized firm of independent public accountants, to pay the principal of, premium on, if
any, and interest on the Outstanding Notes at the Stated Maturity thereof or on the applicable
redemption date, as the case may be, and the Issuers must specify whether the Notes are being
defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the Issuers shall have delivered to
the Trustee an Opinion of Counsel confirming that (i) the Issuers have received from, or there has
been published by, the Internal Revenue Service a ruling or (ii) since the date of the Indenture,
there has been a change in the applicable federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Outstanding
Notes shall not recognize income, gain or loss for federal income tax purposes as a result of such
Legal Defeasance and shall be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Issuers shall have delivered to
the Trustee an Opinion of Counsel confirming that the Holders of the Outstanding Notes shall not
recognize income, gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and shall be subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing either (i) on the
date of such deposit (other than a Default or Event of Default resulting from the incurrence of
Debt all or a portion of the proceeds of which shall be applied to such deposit) or
16
(ii) insofar as
Section 7.01(a)(vi) or 7.01(a)(vii) hereof is concerned, at any time in the period ending on the
91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of,
or constitute a default under, any agreement or instrument (other than the Notes and the Indenture)
to which the Partnership or any of its Subsidiaries is a party or by which the Partnership or any
of its Subsidiaries is bound;
(f) the Issuers shall have delivered to the Trustee an Opinion of Counsel to the effect that
after the 91st day following the deposit, the trust funds shall not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights
generally;
(g) the Issuers shall have delivered to the Trustee an Officers’ Certificate stating that the
deposit was not made by the Issuers with the intent of preferring the Holders over any other
creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Issuers; and
(h) the Issuers shall have delivered to the Trustee an Officers’ Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for or relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
Section 8.05.
Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions
. Subject to Section 8.06 hereof, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 8.05, the “Trustee”) pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and the Indenture, to the payment, either directly or through any paying
agent (including an Issuer acting as paying agent) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the extent required by
law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04
hereof or the principal and interest received in respect thereof other than any such tax, fee or
other charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or
pay to the Issuers from time to time upon the written request of the Issuers any money or U.S.
Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
17
Section 8.06.
Repayment to Issuers
. Any money deposited with the Trustee or any paying agent, or then held by the Issuers, in trust
for the payment of the principal of, premium on, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Issuers on their written request or (if then held by the Issuers)
shall be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured
creditor, look only to the Issuers for payment thereof, and all liability of the Trustee or such
paying agent with respect to such trust money, and all liability of the Issuers as trustee thereof,
shall thereupon cease;
provided
,
however
, that the Trustee or such paying agent,
before being required to make any such repayment, may at the expense of the Issuers cause to be
published once, in the
New York Times
and
The Wall Street Journal
(national edition), notice that
such money remains unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Issuers.
Section 8.07.
Reinstatement
. If the Trustee or paying agent is unable to apply any Dollars or U.S. Government Obligations in
accordance with Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuers’ obligations under the Indenture and the Notes and the
Subsidiary Guarantors’ obligations under the Guarantees shall be revived and reinstated as though
no deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
paying agent is permitted to apply all such money in accordance with Section 8.02 or 8.03 hereof,
as the case may be;
provided
,
however
, that, if the Issuers make any payment of
principal of, premium on, if any, or interest on any Note following the reinstatement of their
obligations, the Issuers shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money held by the Trustee or paying agent.
ARTICLE IX
SUBSIDIARY GUARANTEES
Section 9.01.
Subsidiary Guarantees
. (a) Each Subsidiary Guarantor hereby jointly and severally unconditionally and irrevocably
guarantees on a senior basis to each Holder and to the Trustee and its successors and assigns
(i) the full and punctual payment of principal, premium, if any, and interest with respect to, the
Notes when due, whether at maturity, by acceleration, by redemption or otherwise, and all other
monetary obligations of the Issuers under the Indenture (including obligations to the Trustee) and
the Notes and (ii) the full and punctual performance within applicable grace periods of all other
obligations of the Issuers under the Indenture and the Notes (all the foregoing being hereinafter
collectively called the “Note Obligations”). Each Subsidiary Guarantor further agrees that the
Note Obligations may be extended or renewed, in whole or in part, without notice or further assent
from each such Subsidiary Guarantor, and that each such Subsidiary Guarantor shall remain bound
under this Article IX notwithstanding any extension or renewal of any Note Obligation.
(b) Each Subsidiary Guarantor waives presentation to, demand of, payment from and protest to
the Issuers of any of the Note Obligations and also waives notice of protest
18
for nonpayment. Each
Subsidiary Guarantor waives notice of any Default or Event of Default under the Notes or the Note
Obligations. The obligations of each Subsidiary Guarantor hereunder shall not be affected by
(i) the failure of any Holder or the Trustee to assert any claim or demand or to enforce any right
or remedy against the Issuers or any other Person under the Indenture, the Notes or any other
agreement or otherwise; (ii) any extension or renewal of any thereof; (iii) any rescission, waiver,
amendment or modification of any of the terms or provisions of the Indenture, the Notes or any
other agreement; (iv) the release of any security held by any Holder or the Trustee for the Note
Obligations or any of them; (v) the failure of any Holder or Trustee to exercise any right or
remedy against any other guarantor of the Note Obligations; or (vi) any change in the ownership of
such Subsidiary Guarantor, except as provided in Section 9.02 hereof.
(c) Each Subsidiary Guarantor further agrees that its Guarantee herein constitutes a guarantee
of payment, performance and compliance when due (and not a guarantee of collection) and waives any
right to require that any resort be had by any Holder or the Trustee to any security held for
payment of the Note Obligations.
(d) The obligations of each Subsidiary Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason other than indefeasible payment in
full of the Note Obligations, including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or
termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Note
Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of
each Subsidiary Guarantor herein shall not be discharged or impaired or otherwise affected by the
failure of any Holder or the Trustee to assert any claim or demand or to enforce any remedy under
the Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by
any default, failure or delay, willful or otherwise, in the performance of the obligations, or by
any other act or thing or omission or delay to do any other act or thing which may or might in any
manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise operate as a
discharge of any Subsidiary Guarantor as a matter of law or equity.
(e) Each Subsidiary Guarantor further agrees that its Guarantee herein shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of
principal, premium, if any, or interest with respect to any Note Obligation is rescinded or must
otherwise be restored by any Holder or the Trustee upon the bankruptcy or reorganization of either
of the Issuers or otherwise.
(f) In furtherance of the foregoing and not in limitation of any other right which any Holder
or the Trustee has at law or in equity against any Subsidiary Guarantor by virtue hereof, upon the
failure of the Issuers to pay the principal, premium, if any, or interest with respect to any Note
Obligation when and as the same shall become due, whether at maturity, by acceleration, by
redemption or otherwise, or to perform or comply with any other Note Obligation, each Subsidiary
Guarantor hereby promises to and shall forthwith pay, or cause to be paid, in cash, to the Holders
or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Note
Obligations, (ii) accrued and unpaid interest on such Note
19
Obligations (but only to the extent not
prohibited by law) and (iii) all other monetary Note Obligations of the Issuers to the Holders and
the Trustee.
(g) Each Subsidiary Guarantor agrees that it shall not be entitled to any right of subrogation
in relation to the Holders in respect of any Note Obligations guaranteed hereby until payment in
full of all Note Obligations. Each Subsidiary Guarantor further agrees that, as between it, on the
one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the Note
Obligations guaranteed hereby may be accelerated as provided in Article VII hereof for the purposes
of any Subsidiary Guarantor’s Guarantee herein, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Note Obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of such obligations as provided in Article VII
hereof, such Note Obligations (whether or not due and payable) shall forthwith become due and
payable by such Subsidiary Guarantor for the purposes of this Section 9.01.
(h) Each Subsidiary Guarantor also agrees to pay any and all costs and expenses (including
reasonable attorneys’ fees) incurred by the Trustee or any Holder in enforcing any rights under
this Section 9.01.
Section 9.02.
Limitation on Liability
. Any term or provision of the Indenture to the contrary notwithstanding, the maximum, aggregate
amount of the Note Obligations guaranteed hereunder by any Subsidiary Guarantor shall not exceed
the maximum amount that, after giving effect to all other contingent and fixed liabilities of such
Subsidiary Guarantor and to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of its obligations under its Guarantee, can be hereby guaranteed
without rendering the Indenture, as it relates to any Subsidiary Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer.
Section 9.03.
Successors and Assigns
. This Article IX shall be binding upon each Subsidiary Guarantor and, except as provided in
Section 9.07, its successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or assignment of rights by
any Holder or the Trustee, the rights and privileges conferred upon that party in the Indenture and
in the Notes shall automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of the Indenture.
Section 9.04.
No Waiver
. Neither a failure nor a delay on the part of either the Trustee or the Holders in exercising any
right, power or privilege under this Article IX shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise of any right, power or
privilege. The rights, remedies and benefits of the Trustee and the Holders herein expressly
specified are cumulative and not exclusive of any other rights, remedies or benefits which either
may have under this Article IX at law, in equity, by statute or otherwise.
Section 9.05.
Modification
. No modification, amendment or waiver of any provision of this Article IX, nor the consent to any
departure by any Subsidiary Guarantor therefrom, shall in any event be effective unless the same
shall be in writing and signed by the
20
Trustee, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice to or demand on any
Subsidiary Guarantor in any case shall entitle such Subsidiary Guarantor to any other or further
notice or demand in the same, similar or other circumstances.
Section 9.06.
Execution of Supplemental Indenture for Future Subsidiary Guarantors
. Each Subsidiary which is required to become a Subsidiary Guarantor pursuant to Section 5.05
hereof shall promptly execute and deliver to the Trustee a supplemental Indenture in substantially
the form of Exhibit B hereto pursuant to which such Subsidiary shall become a Subsidiary
Guarantor under this Article IX and shall guarantee the Note Obligations. Concurrently with the
execution and delivery of such supplemental Indenture, the Issuers shall deliver to the Trustee an
Opinion of Counsel to the effect that such supplemental Indenture has been duly authorized,
executed and delivered by such Subsidiary and that, subject to the application of bankruptcy,
insolvency, moratorium, fraudulent conveyance or transfer and other similar laws relating to
creditors’ rights generally and to the principles of equity, whether considered in a proceeding at
law or in equity, the Guarantee of such Subsidiary Guarantor is a legal, valid and binding
obligation of such Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms.
Section 9.07.
Release of Guarantee
. Provided that no Default shall have occurred and shall be continuing under the Indenture, the
Guarantee of a Subsidiary Guarantor under this Article IX shall terminate and be of no further
force and effect, and such Subsidiary Guarantor shall be released from the Indenture and all Note
Obligations, upon the following events:
(a) upon any sale or other disposition of all or substantially all of the assets of such
Subsidiary Guarantor (including by way of merger, consolidation or otherwise) to any Person that is
not an Affiliate of either of the Issuers (provided such sale or other disposition is not
prohibited by the Indenture);
(b) upon any sale or other disposition of all of the Equity Interests of a Subsidiary
Guarantor, to any Person that is not an Affiliate of either of the Issuers; or
(c) following the release or discharge of all guarantees by such Subsidiary Guarantor of any
Debt of the Issuers and any Subsidiary of the Partnership (other than any Debt Securities), upon
delivery by the Issuers to the Trustee of a written notice of such release or discharge from the
guarantees.
ARTICLE X
MISCELLANEOUS
Section 10.01.
Additional Amendments
. With respect to the Notes, references to (A) “Section 6.01” in the Original Indenture shall be
deemed to be references to “Section 7.01 of this Supplemental Indenture; (B) “Section 11.02” in the
Original Indenture shall be deemed to be references to “Section 8.06” of this Supplemental
Indenture; (C) “Section 6.01(g) or (h)” in the Original Indenture shall be deemed to be references
to Section 7.01(a)(vi) or (a)(vii) of this Supplemental Indenture; and (D) “Article X” in the
Original Indenture shall be deemed to be a
21
reference to Article VI of this Supplemental Indenture.
Section 10.02.
Integral Part
. This Supplemental Indenture constitutes an integral part of the Indenture.
Section 10.03.
Adoption, Ratification and Confirmation
. The Original Indenture, as supplemented and amended by this Supplemental Indenture, is in all
respects hereby adopted, ratified and confirmed.
Section 10.04.
Counterparts
. This Supplemental Indenture may be executed in any number of counterparts, each of which when so
executed shall be deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
Section 10.05.
Governing Law
.
THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
[Signatures on following pages]
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SIGNATURES
ISSUERS
:
PLAINS ALL AMERICAN PIPELINE, L.P.
By: PAA GP LLC
its General Partner
By: PLAINS AAP, L.P.
its Sole Member
By: PLAINS ALL AMERICAN GP LLC
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PAA FINANCE CORP.
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
1 of 10
SUBSIDIARY GUARANTORS
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PLAINS MARKETING GP INC.
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PLAINS MARKETING, L.P.
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PLAINS PIPELINE, L.P.
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
2 of 10
PACIFIC ENERGY GROUP LLC
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PACIFIC L.A. MARINE TERMINAL LLC
By: PACIFIC ENERGY GROUP LLC
its Sole Member
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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ROCKY MOUNTAIN PIPELINE SYSTEM LLC
By: PACIFIC ENERGY GROUP LLC
its Sole Member
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
3 of 10
PLAINS PRODUCTS TERMINALS LLC
By: PLAINS MARKETING, L.P.
its Sole Member
By: PLAINS MARKETING GP INC.
Its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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RANCHO LPG HOLDINGS LLC
By: PLAINS LPG SERVICES, L.P.
its Sole Member
By: PLAINS LPG SERVICES GP, LLC
its General Partner
By: PLAINS MARKETING, L.P.
its Sole Member
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
4 of 10
PLAINS MARKETING CANADA LLC
By: PLAINS MARKETING, L.P.
its Sole
Member
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PMC (NOVA SCOTIA) COMPANY
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By:
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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PLAINS MARKETING CANADA, L.P.
By: PMC (NOVA SCOTIA) COMPANY
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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Signature Page to Seventeenth Supplemental Indenture
5 of 10
PLAINS LPG SERVICES GP LLC
By: PLAINS MARKETING, L.P.
its Sole Member
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PLAINS TOWING LLC
By: PLAINS MARKETING, L.P.
its Sole Member
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PICSCO LLC
By: PLAINS MARKETING, L.P.
its Sole Member
By: PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
6 of 10
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PLAINS MIDSTREAM GP LLC
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By:
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PLAINS MARKETING, L.P.
its Sole Member
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By:
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PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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PLAINS MIDSTREAM, L.P.
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By:
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PLAINS MIDSTREAM GP LLC
its General Partner
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By:
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PLAINS MARKETING, L.P.
its Sole Member
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By:
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PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
7 of 10
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PLAINS MIDSTREAM CANADA ULC
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By:
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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AURORA PIPELINE COMPANY LTD.
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By:
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Name:
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Al Swanson
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Title:
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Vice President — Finance
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PLAINS LPG SERVICES, L.P.
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By:
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PLAINS LPG SERVICES GP LLC
its General Partner
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By:
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PLAINS MARKETING, L.P.
its Sole Member
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By:
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PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
8 of 10
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LONE STAR TRUCKING, LLC
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By:
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PLAINS LPG SERVICES, L.P.
its Sole Member
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By:
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PLAINS LPG SERVICES GP LLC
its General Partner
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By:
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PLAINS MARKETING, L.P.
its Sole Member
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By:
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PLAINS MARKETING GP INC.
its General Partner
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By:
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Name:
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Al Swanson
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Title:
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Senior Vice President and
Chief Financial Officer
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Signature Page to Seventeenth Supplemental Indenture
9 of 10
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TRUSTEE
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Name:
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Steven Finklea
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Title:
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Vice President
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Signature Page to Seventeenth Supplemental Indenture
10 of 10
EXHIBIT A
(Form of Face of Note)
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CUSIP 72650RAW2
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No. ___
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ISIN US72650RAW25
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$
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PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
5.75% Senior Notes due 2020
Plains All American Pipeline, L.P., a Delaware limited partnership, and PAA Finance Corp., a
Delaware corporation, jointly and severally promise to pay to ___, or registered assigns,
the principal sum of
Dollars [or such greater or lesser amount as may be endorsed
on the Schedule attached hereto]
1
on January 15, 2020.
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
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PLAINS ALL AMERICAN PIPELINE, L.P.
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By:
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PAA GP LLC, its General Partner
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By:
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Plains AAP, L.P., its Sole Member
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By:
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Plains All American GP LLC, its General Partner
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By:
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Name:
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Title:
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PAA FINANCE CORP.
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF
AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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Dated:
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1
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To be included only if the Note is issued in global form.
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A-1
(Form of Back of Note)
5.75% Senior Notes due 2020
[THIS GLOBAL SECURITY IS HELD BY OR ON BEHALF OF THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (A) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.08 OF THE ORIGINAL INDENTURE, (B) THIS
GLOBAL SECURITY MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.15 OF THE ORIGINAL
INDENTURE, (C) THIS GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.10 OF THE ORIGINAL INDENTURE AND (D) THIS GLOBAL SECURITY MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY OR ITS NOMINEE WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.]
2
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1.
Interest
. Plains All American Pipeline, L.P., a Delaware limited partnership (the
“Partnership”), and PAA Finance Corp., a Delaware corporation (“PAA Finance” and, together with the
Partnership, the “Issuers”), jointly and severally promise to pay interest on the principal amount
of this Note at 5.75% per annum from September 4, 2009 until maturity. The Issuers shall pay
interest semi-annually on January 15 and July 15 of each such year, or if any such day is not a
Business Day, on the next succeeding Business Day (each an “Interest Payment Date”). Interest on
the Notes shall accrue from the most recent date to which interest has been paid or, if no interest
has been paid, from the date of issuance. The first Interest Payment Date shall be January 15,
2010. The Issuers shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at a rate
that is 1% per annum in excess of the rate then in effect; and they shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods) from time to time on demand at the same
rate to the extent lawful. Interest shall be computed on the basis of a 360-day year of twelve
30-day months.
2.
Method of Payment
. The Issuers shall pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the
January 1 or July 1 next preceding the Interest Payment Date, even if such Notes are canceled after
such record date and on or before such Interest Payment Date, except as provided in Section 2.17 of
the Original Indenture with respect to defaulted interest, and the Issuers shall pay principal (and
premium, if any) of the Notes upon surrender thereof to the Trustee or a paying agent on or after
the Stated Maturity thereof. The Notes shall be payable as to principal,
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2
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To be included only if the Note is issued in global
form.
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A-2
premium, if any, and interest at the office or agency of the Trustee maintained for such
purpose within or without The City and State of New York, or, at the option of the Issuers, payment
of interest may be made by check mailed to the Holders at their addresses set forth in the register
of Holders, and
provided
that payment by wire transfer of immediately available funds shall
be required with respect to principal of and interest and premium, if any, on, each Global
Security and all other Notes the Holders of which shall have provided wire transfer instructions to
the Issuers or the paying agent on or prior to the applicable record date. Such payment shall be
in such coin or currency of the United States of America as at the time of payment is legal tender
for payment of public and private debts.
3.
Paying Agent and Registrar
. Initially, U.S. Bank National Association, the Trustee
under the Indenture, shall act as paying agent and Registrar. The Issuers may change any paying
agent or Registrar without notice to any Holder. The Issuers or any of their Subsidiaries may act
in any such capacity.
4.
Indenture
. The Issuers issued the Notes under an Indenture dated as of
September 25, 2002 (the “Original Indenture”), as supplemented by the Seventeenth Supplemental
Indenture dated as of September 4, 2009 (the “Supplemental Indenture” and, together with the
Original Indenture, the “Indenture”) among the Issuers and the Trustee and, with respect to the
Supplemental Indenture, the subsidiary guarantors signatory thereto (the “Subsidiary Guarantors”).
The terms of the Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are referred to the Indenture and such Act for
a statement of such terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are joint and several obligations of the Issuers initially in aggregate principal amount
of $500 million. The Issuers may issue an unlimited aggregate principal amount of Additional Notes
under the Indenture. Any such Additional Notes that are actually issued shall be treated as issued
and outstanding Notes (and as the same series (with identical terms other than with respect to the
issue date, the date of first payment of interest, if applicable, and the payment of interest
accruing prior to the issue date) as the initial Notes) for all purposes of the Indenture,
including waivers, amendments, redemptions and offers to purchase. To secure the due and punctual
payment of the principal and interest on the Notes and all other amounts payable by the Issuers
under the Indenture and the Notes when and as the same shall be due and payable, whether at
maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the
Subsidiary Guarantors have unconditionally guaranteed the Note Obligations under the Indenture and
the Notes on a senior basis pursuant to the terms of the Indenture.
5.
Optional Redemption
.
(a) At their option at any time prior to maturity, the Issuers may choose to redeem
all or any portion of the Notes at once or from time to time.
(b) To redeem the Notes, the Issuers must pay a redemption price equal to the greater of (a)
100% of the principal amount of the Notes to be redeemed, and
(b) as determined by the Quotation Agent (as defined below), the sum of the present values of the remaining
A-3
scheduled payments of principal and interest on the Notes to be redeemed (not including any portion
of those payments of interest accrued as of the date of redemption) discounted to the date of
redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate (as defined below) plus 35 basis points, plus, in either case, accrued
and unpaid interest to the date of redemption (subject to the right of Holders on the relevant
record date to receive interest due on the relevant interest payment date).
For purposes of determining any redemption price, the following definitions shall apply:
“Adjusted Treasury Rate” means, with respect to any date of redemption, the rate per annum
equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal
to the Comparable Treasury Price for the date of redemption.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes to be redeemed
that would be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any date of redemption, (a) the average of
the Reference Treasury Dealer Quotations for the date of redemption, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than four
Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations.
“Quotation Agent” means a Primary Treasury Dealer (as defined below) selected by Wells Fargo
Securities, LLC or another Reference Treasury Dealer appointed by the Issuers.
“Reference Treasury Dealer” means each of Citigroup Global Markets Inc., UBS Securities LLC, a
Primary Treasury Dealer (as defined below) selected by Wells Fargo Securities, LLC and one other
dealer selected by the Issuers that is a Primary Treasury Dealer and each of their successors;
provided, however, that if any of the foregoing shall cease to be a primary U.S. government
securities dealer in the United States (a “Primary Treasury Dealer”), the Issuers shall substitute
another Primary Treasury Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any date of redemption, the average, as determined by the Trustee, of the bid and asked prices
for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding that date of redemption.
6.
Notice of Redemption
. Notice of redemption shall be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations larger than $2,000 may be redeemed
in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be
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redeemed. Unless the Issuers default in payment of the redemption price, on and after the
redemption date interest ceases to accrue on Notes or portions thereof called for redemption.
7.
Denominations, Transfer, Exchange
. The Notes are in registered form without
coupons in minimum denominations of $2,000 and integral multiples of $1,000. The transfer of Notes
may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Issuers may require a Holder to pay any taxes or other governmental charges
required by law or permitted by the Indenture. The Issuers need not exchange or register the
transfer of any Note or portion of a Note selected for redemption or repurchase, except for the
unredeemed or unrepurchased portion of any Note being redeemed or repurchased in part. Also, the
Issuers need not exchange or register the transfer of any Notes for a period of 15 days before a
selection of Notes to be redeemed or repurchased or during the period between a record date and the
corresponding Interest Payment Date.
8.
Persons Deemed Owners
. The registered Holder of a Note shall be treated as its
owner for all purposes.
9.
Amendment, Supplement and Waiver
. Subject to certain exceptions, the Indenture or
the Notes may be amended or supplemented with the consent of the Holders of a majority in aggregate
principal amount of the then Outstanding Notes, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the Holders of a majority
in aggregate principal amount of the then Outstanding Notes. Without the consent of any Holder of
a Note, the Indenture or the Notes may be amended or supplemented for any of the purposes set forth
in Section 9.01 of the Original Indenture (as amended by the Supplemental Indenture), including to
cure any ambiguity, defect or inconsistency, to provide for the assumption of an Issuer’s
obligations to Holders of the Notes in case of a merger or consolidation of such Issuer or sale of
all or substantially all of such Issuer’s assets, to add or release Subsidiary Guarantors (or their
successors) pursuant to the terms of the Indenture, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not adversely affect the
legal rights under the Indenture of any Holder of the Notes, to comply with the requirements of the
Commission to permit the qualification of the Indenture under the Trust Indenture Act, to evidence
or provide for the acceptance of appointment under the Indenture of a successor Trustee, to add any
additional Events of Default, to secure the Notes or the Guarantees or to establish the form or
terms of any other series of Debt Securities.
10.
Defaults and Remedies
. Events of Default with respect to the Notes include:
(i) default for 60 days in the payment when due of interest on the Notes; (ii) default in payment
when due of principal of or premium, if any, on the Notes at maturity, upon redemption or
otherwise, (iii) failure by an Issuer or any Subsidiary Guarantor for 90 days after notice to
comply with any of the other agreements in the Indenture (
provided
that notice need not be
given, and an Event of Default shall occur, 90 days after any breach of the provisions of Section
6.01 of the Supplemental Indenture); (iv) default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any Debt of an Issuer or
any
of the Partnership’s Subsidiaries (or the payment of which is guaranteed by the
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Partnership or
any of its Subsidiaries), whether such Debt or guarantee now exists or is created after the Issue
Date, if that default (a) is caused by a failure to pay principal of or premium, if any, or
interest on such Debt prior to the expiration of the grace period provided in such Debt (a “Payment
Default”) or (b) results in the acceleration of the maturity of such Debt to a date prior to its
original stated maturity, and, in each case described in clause (a) or (b), the principal amount of
any such Debt, together with the principal amount of any other such Debt under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates $25.0 million or
more, subject to the proviso set forth in Section 7.01(a)(iv) of the Supplemental Indenture; (v)
except as permitted by the Indenture, any Guarantee shall cease for any reason to be in full force
and effect (except as otherwise provided in the Indenture) or is declared null and void in a
judicial proceeding or any Subsidiary Guarantor, or any Person acting on behalf of any Subsidiary
Guarantor, shall deny or disaffirm its obligations under the Indenture or its Guarantee and (vi)
certain events of bankruptcy or insolvency with respect to an Issuer or any of the Subsidiary
Guarantors. If any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the then Outstanding Notes may declare all the Notes to
be due and payable. Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency involving an Issuer, but not any Subsidiary Guarantor,
all Outstanding Notes shall become due and payable without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the then Outstanding Notes may
direct the Trustee in its exercise of any trust or power. If and so long as the board of
directors, an executive committee of the board of directors or trust committee of Responsible
Officers of the Trustee in good faith so determines, the Trustee may withhold from Holders of the
Notes notice of any continuing Default (except a Default relating to the payment of principal,
premium, if any, or interest) if it determines that withholding notice is in their interests. The
Holders of a majority in aggregate principal amount of the Notes then Outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any past Default or Event of Default
and its consequences under the Indenture except a continuing Default or Event of Default in the
payment of interest on, the principal of, or premium, if any, on the Notes or any other Default
specified in Section 6.06 of the Original Indenture. The Issuers and the Subsidiary Guarantors are
required to deliver to the Trustee annually a statement regarding compliance with the Indenture,
and the Issuers are required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
11.
Trustee Dealings with Issuers
. The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the Issuers or their
Affiliates, and may otherwise deal with the Issuers or their Affiliates, as if it were not the
Trustee.
12.
No Recourse Against Others
. The General Partner and its directors, officers,
employees and members (in their capacities as such) shall not have any liability for any
obligations of the Issuers under the Notes. In addition, the Managing General Partner and its
directors, officers, employees and members shall not have any liability for any obligations of the
Issuers under the Notes. Each Holder of Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for issuance of the Notes.
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13.
Authentication
. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
14.
Abbreviations
. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
15.
CUSIP and ISIN Numbers
. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Issuers have caused CUSIP and corresponding ISIN
numbers to be printed on the Notes, and the Trustee may use CUSIP and corresponding ISIN numbers in
notices of redemption as a convenience to Holders. No representation is made as to the accuracy of
such numbers either as printed on the Notes or as contained in any notice of redemption and
reliance may be placed only on the other identification numbers placed thereon.
The Issuers shall furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:
Plains All American Pipeline, L.P.
333 Clay Street, Suite 1600
Houston, Texas 77002
Attention: Investor Relations
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Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and
irrevocably appoint
agent to transfer this Note on the books of the Issuers. The agent may substitute another to act
for him.
Date:
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Your Signature:
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(Sign exactly as your name appears on the face of this Note)
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Signature Guarantee:
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(Signature must be guaranteed by a financial institution that is a member
of the Securities Transfer Agent Medallion Program (“STAMP”), the Stock
Exchange Medallion Program (“SEMP”), the New York Stock Exchange, Inc.
Medallion Signature Program (“MSP”) or such other signature guarantee
program as may be determined by the Registrar in addition to, or in
substitution for, STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE
3
The original principal amount of this Global Note is $500,000,000. The following increases or
decreases in this Global Note have been made:
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Amount of
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Principal
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decrease in
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Amount of
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Amount of
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Signature of
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Principal
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increase in
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this Global Note
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authorized
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Amount
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Principal Amount
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following such
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signatory of
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Date of
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of
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of
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decrease
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Trustee or Note
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Exchange
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this Global Note
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this Global Note
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(or increase)
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Custodian
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3
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To be included only if the Note is issued in global
form.
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A-9
EXHIBIT B
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of
, among
Plains All American Pipeline, L.P., a Delaware limited partnership (the “Partnership”), PAA Finance
Corp., a Delaware corporation (“PAA Finance” and, together with the Partnership, the “Issuers”),
(the “Subsidiary Guarantor”), a direct or indirect subsidiary of Plains
All American Pipeline, L.P. (or its successor), a Delaware limited partnership (the “Partnership”),
and U.S. Bank National Association, as trustee under the indenture referred to below (the
“Trustee”).
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the
“Original Indenture”), dated as of September 25, 2002, as supplemented by the Seventeenth
Supplemental Indenture (the “Seventeenth Supplemental Indenture” and, together with the Original
Indenture, the “Indenture”) dated as of September 4, 2009, among the Issuers, the Subsidiary
Guarantors and the Trustee, providing for the issuance of the Issuers’ 5.75% Senior Notes due 2020
(the “Notes”);
WHEREAS, Section 5.05 of the Seventeenth Supplemental Indenture provides that under certain
circumstances the Partnership is required to cause the Subsidiary Guarantor to execute and deliver
to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantor shall
unconditionally guarantee all of the Issuers’ obligations under the Notes pursuant to a Guarantee
on the terms and conditions set forth herein; and
WHEREAS, pursuant to Section 9.01 of the Original Indenture, the Issuers and the Trustee are
authorized to execute and deliver this Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Issuers, the Subsidiary Guarantor
and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the
Notes as follows:
1.
Definitions.
(a) Capitalized terms used herein without definition shall have the meanings assigned to them
in the Indenture.
(b) For all purposes of this Supplemental Indenture, except as otherwise herein expressly
provided or unless the context otherwise requires: (i) the terms and expressions used herein shall
have the same meanings as corresponding terms and expressions used in the Indenture; and (ii) the
words “herein,” “hereof” and “hereby” and other words of similar import
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used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to
any particular section hereof.
2.
Agreement to Guarantee.
The Subsidiary Guarantor hereby agrees, jointly and
severally with all other Subsidiary Guarantors under the Indenture, to guarantee the Issuers’
obligations under the Notes on the terms and subject to the conditions set forth in Article IX of
the Seventeenth Supplemental Indenture and to be bound by all other applicable provisions of the
Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and
confirmed and all the terms, conditions and provisions thereof shall remain in full force and
effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every
holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
3.
GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE DEEMED TO BE A NEW YORK
CONTRACT, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
4.
Trustee Makes No Representation.
The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.
5.
Counterparts.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
6.
Effect of Headings.
The Section headings herein are for convenience only and shall
not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
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PLAINS
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ALL AMERICAN PIPELINE, L.P.
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By:
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PAA GP LLC, its General Partner
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By:
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Plains AAP, L.P., its Sole Member
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By:
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Plains All American GP LLC, its General Partner
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PAA FINANCE CORP.
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By:
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Name:
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Title:
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[SUBSIDIARY GUARANTOR],
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By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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Name:
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Title:
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B-3
