Execution
Version
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
as Issuers
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Guarantors
$400,000,000
SERIES A AND SERIES B
6.125% SENIOR NOTES DUE 2017
NINTH
SUPPLEMENTAL
INDENTURE
Dated as of October 30, 2006
U.S. BANK NATIONAL ASSOCIATION
as Trustee
TABLE OF CONTENTS
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ARTICLE I
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1
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Section 1.01. Establishment
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1
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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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8
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ARTICLE III THE NOTES
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8
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Section 3.01. Form
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8
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Section 3.02. Issuance of Additional Notes
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9
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Section 3.03. Transfer of Transfer Restricted Securities
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9
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Section 3.04. Restrictive Legends
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11
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ARTICLE IV REDEMPTION AND PREPAYMENT
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13
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Section 4.01. Optional Redemption
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13
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Section 4.02. Special Mandatory Redemption
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13
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ARTICLE V COVENANTS
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13
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Section 5.01. Compliance Certificate
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13
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Section 5.02. Limitations on Liens
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14
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Section 5.03. Restriction of Sale-Leaseback Transactions
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15
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Section 5.04. SEC Reports; Financial Statements
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16
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Section 5.05. Additional Subsidiary Guarantees
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17
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ARTICLE VI SUCCESSORS
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17
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Section 6.01. Consolidation and Mergers of the Issuers
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17
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Section 6.02. Rights and Duties of Successor
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17
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Section 6.03. Supplemental Indenture
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18
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ARTICLE VII DEFAULTS AND REMEDIES
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18
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Section 7.01. Events of Default
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18
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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20
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Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance
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20
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Section 8.02. Legal Defeasance and Discharge
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20
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Section 8.03. Covenant Defeasance
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21
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Section 8.04. Conditions to Legal or Covenant Defeasance
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21
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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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22
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Section 8.06. Repayment to Issuers
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23
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Section 8.07. Reinstatement
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23
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ARTICLE IX SUBSIDIARY GUARANTEES
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23
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Section 9.01. Subsidiary Guarantees
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23
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Section 9.02. Limitation on Liability
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25
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Section 9.03. Successors and Assigns
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25
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Section 9.04. No Waiver
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25
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Section 9.05. Modification
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26
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Section 9.06. Execution of Supplemental Indenture for Future Subsidiary Guarantors
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26
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Section 9.07. Release of Guarantee
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26
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ARTICLE X MISCELLANEOUS
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27
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Section 10.01. Additional Amendments
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27
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Section 10.02. Integral Part
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27
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Section 10.03. Adoption, Ratification and Confirmation
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27
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Section 10.04. Counterparts
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27
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Section 10.05. Governing Law
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27
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EXHIBIT A:
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Form of Note
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EXHIBIT B:
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Form of Supplemental Indenture
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EXHIBIT C:
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Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities Pursuant to Rule
144A or Rule 501
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EXHIBIT D:
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Transferee Letter of Representations
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EXHIBIT E:
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Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities Pursuant to
Regulation S
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NINTH SUPPLEMENTAL INDENTURE dated as of October 30, 2006 (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 6.125% Senior
Notes due 2017 (the Notes). As provided in Article III hereof, the Notes shall be issued as either
Series A Notes or Series B Notes, and any Notes may have such additional designation.
(b) There are to be authenticated and delivered $400,000,000 principal amount of Series A
Notes on the Issue Date, and from time to time thereafter there may be authenticated and delivered
an unlimited principal amount of Additional Notes. Further, from time to time after the Issue
Date, Series B Notes may be authenticated and delivered in a principal amount equal to the
principal amount of the Series A Notes exchanged therefor pursuant to an Exchange Offer.
(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:
Additional Interest means all additional interest owing on the Notes pursuant to a
registration default under an Exchange and Registration Rights Agreement.
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
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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 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.
Exchange and Registration Rights Agreement means (a) the Registration Rights Agreement among
the Partnership, PAA Finance, the Subsidiary Guarantors and the Initial Purchasers dated the Issue
Date relating to the Series A Notes issued on such date and (b) any similar agreement that the
Issuers may enter into in relation to any other Series A Notes, in each case as such agreement may
be amended or modified from time to time.
Exchange Offer means the offer by the Issuers to the Holders of all outstanding Transfer
Restricted Securities to exchange all such outstanding Transfer Restricted Securities held by such
Holders for Series B Notes, in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders.
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.
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guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, by way of a pledge of assets, or through letters of credit or reimbursement,
claw-back, make-well, or keep-well agreements in respect thereof), of all or any part of the
payment of any Debt. The term guarantee used as a verb has a corresponding meaning.
Initial Purchasers means Citigroup Global Markets Inc. and the other initial purchasers
party to the initial Exchange and Registration Rights Agreement.
Issue Date means, with respect to the Notes, the date on which the Notes are initially
issued.
Notes has the meaning assigned to it in Section 1.01(a) hereof, and includes both the Series
A Notes and the Series B Notes.
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 of 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.
Pacific means Pacific Energy Partners, L.P.
Pacific Merger means the merger of the Pacific into the Partnership pursuant to the terms of
the Pacific Merger Agreement.
Pacific Merger Agreement means the Agreement and Plan of Merger dated as of June 11, 2006,
by and among the Partnership, Plains AAP, L.P., Plains All American GP LLC, Pacific, Pacific Energy
Management LLC and Pacific Energy GP, LP, as it may be amended from time to time.
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 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, repairmens, materialmens, suppliers, carriers, landlords, warehousemens or
similar Lien incurred in the ordinary course of business which is not
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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;
(8) any Lien incurred in the ordinary course of business in connection with workers
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
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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 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 Partnerships or any Restricted Subsidiarys 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
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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, and 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.
Securities shall have the meaning assigned to such term in the Exchange and Registration
Rights Agreement relating thereto.
Series A Notes means the Issuers 6.125% Series A Senior Notes due 2017 to be issued
pursuant to this Supplemental Indenture.
Series B Notes means the Issuers 6.125% Series B Notes due 2017 to be issued pursuant to an
Exchange Offer.
Special Mandatory Redemption Trigger Event means the earlier to occur of the following two
events:
(1) February 15, 2007, if the Pacific Merger has not been consummated by such date; or
(2) the termination of the Pacific Merger Agreement.
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.
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.
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Notwithstanding anything in the Indenture to the contrary, PAA Finance, Atchafalaya Pipeline,
L.L.C. and Andrews Partners, LLC shall not be Subsidiary Guarantors.
Transfer Restricted Securities means any Notes outstanding prior to the Resale Restriction
Termination Date with respect to such Notes and which must bear the legend required under Section
3.04 hereof.
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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Distribution Compliance Period
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3.03
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(c)
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Event of Default
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7.01
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IAI Global Note
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3.01
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IAIs
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3.01
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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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QIBs
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3.01
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Regulation S
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3.01
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Regulation S Global Note
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3.01
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Required Filing Dates
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5.04
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Resale Restriction Termination Date
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3.04
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Rule 144A
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3.01
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Rule 144A Global Note
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3.01
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Special Mandatory Redemption
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4.02
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Successor Company
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6.01
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U.S. Persons
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3.01
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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 as Series A Notes, with Series A Notes initially resold in reliance upon Rule 144A and
Regulation S being represented by separate Global Securities, which are referred to herein as the
Rule 144A Global Note and the Regulation S Global Note, respectively. The Series A Notes and
Trustees 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. The Series A Notes constituting Transfer
Restricted Securities will be resold initially only to (a) Qualified Institutional Buyers (as such
term is defined in Section 144A of the Securities Act) (QIBs) in reliance on Rule 144A of the
Securities Act (Rule 144A) and (b) Persons other than U.S. Persons (as defined under Regulation S
under the Securities Act (Regulation S)) (U.S.
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Persons) in reliance on Regulation S. Thereafter, the Series A Notes may be transferred to, among others, QIBs, purchasers in reliance
upon Regulation S and institutional accredited investors (as defined in subparagraph (a)(1), (2),
(3) or (7) of Rule 501 of the Securities Act (IAIs)) in accordance with the procedures set forth
in Rule 501 of the Securities Act, provided that any Series A Notes constituting Transfer
Restricted Securities that are transferred to IAIs who are not QIBs shall be issued only in
definitive form or in the form of interests in a separate Global Security (the IAI Global Note).
Pursuant to the terms of an Exchange and Registration Rights Agreement, upon consummation of the
Exchange Offer contemplated thereby, the Series A Notes constituting Transfer Restricted Securities
will be exchanged by the Holders for Series B Notes to be issued by the Issuers in accordance with
Section 3.03 hereof. The Series B Notes shall be issued initially in the form of one or more
Global Securities, and the Series B Notes and the Trustees certificate of authentication shall be
substantially in the form of Exhibit A hereto.
Section 3.02.
Issuance of Additional Notes
. The Issuers may, from time to time, issue an
unlimited amount of additional Series A Notes (Additional Notes) under the Indenture, which shall
be issued in the same form as the Series A Notes issued on the Issue Date and which shall have
identical terms as the Series A Notes issued on the Issue Date other than with respect to the issue
date, issue price and date of first payment of interest. The Series A Notes issued on the Issue
Date shall be limited in aggregate principal amount to $400,000,000. The Series A Notes issued on
the Issue Date and any Additional Notes subsequently issued, together with any Series B Notes
issued in exchange therefor pursuant to an Exchange Offer, shall be treated as a single series for
all purposes under the Indenture, including waivers, amendments, redemptions and offers to
purchase. If the Issuers issue additional Series A Notes prior to the completion of an Exchange
Offer, the period of the resale restrictions applicable to any Series A Notes previously offered
and sold in reliance on Rule 144A will be automatically extended to the last day of the period of
any resale restrictions imposed on any such additional Series A Notes.
Section 3.03.
Transfer of Transfer Restricted Securities
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(a) When Notes are presented to the Registrar with the request to register the transfer of
such Notes or exchange such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange in accordance with
Article II of the Original Indenture. In addition, in the case of Series A Notes that are Transfer
Restricted Securities in definitive form, such request to register the transfer or make the
exchange shall be accompanied by the following additional information and documents, as applicable,
upon which the Registrar may conclusively rely:
(1) if such Transfer Restricted Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder, without transfer, a certification from
such Holder to that effect in substantially the form of Exhibit C hereto; or
(2) if such Transfer Restricted Securities are being transferred (i) to a QIB in
accordance with Rule 144A under the Securities Act or (ii) pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act (and based upon an opinion
of counsel if the Issuers or the Trustee so requests) or (iii)
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pursuant to an effective registration statement under the Securities Act, a certification to that effect from such
Holder in substantially the form of Exhibit C hereto; or
(3) if such Transfer Restricted Securities are being transferred to an IAI within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act (and based upon
an opinion of counsel if the Issuers or the Trustee so requests), a certification to that
effect from such Holder in substantially the form of Exhibit C hereto and a certification
from the applicable transferee in substantially the form of Exhibit D hereto; or
(4) if such Transfer Restricted Securities are being transferred to Persons other than
U.S. Persons in reliance on Regulation S, a certification to that effect from such Holder in
substantially the form of Exhibit E hereto; or
(5) if such Transfer Restricted Securities are being transferred in reliance on another
exemption from the registration requirements of the Securities Act (and based upon an
opinion of counsel if the Issuers or the Trustee so requests), a certification to that
effect from such Holder in substantially the form of Exhibit C hereto.
(b) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act
or an effective registration statement under the Securities Act:
(1) in the case of any Transfer Restricted Security that is in the form of a definitive
Note, the Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a definitive Note that does not bear the legend set forth in
Section 3.04(a) below and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(2) in the case of any Transfer Restricted Security represented by a Global Security,
such Transfer Restricted Security shall not be required to bear the legend set forth in
Section 3.04(a) below if all other interests in such Global Security have been or are
concurrently being sold or transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act.
Notwithstanding the foregoing, upon consummation of an Exchange Offer, the Issuers shall issue and,
upon receipt of an authentication order in accordance with Section 2.05 of the Original Indenture,
the Trustee shall authenticate Series B Notes in exchange for Series A Notes accepted for exchange
in the Exchange Offer, which Series B Notes shall not bear the legend set forth in Section 3.04(a)
below, and the Registrar shall rescind any restriction on the transfer of such Notes, in each case
unless the Holder of such Series A Notes is either (1) is an affiliate of the Issuers within the
meaning of Rule 405 under the Securities Act or an Initial Purchaser holding Series A Notes
acquired by it and having the status of an unsold allotment in the initial offering and sale of
Series A Notes pursuant to the Purchase Agreement, dated as of October 23, 2006, between the
Issuers, the other parties referred to as Plains Parties therein and the Initial Purchasers, (2)
does not acquire the Series B Notes in the ordinary course of such Holders
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business or (3) has an arrangement or understanding with any Person to participate in the Exchange Offer for the purpose
of distributing such Series B Notes or is engaged in, and intends to engage in, any such
distribution. The Issuers shall identify to the Trustee such Holders of the Notes in a written
certification signed by an officer of each Issuer and, absent certification from the Issuers to
such effect, the Trustee shall assume that there are no such Holders.
(c) Until the 40th day after the later of the commencement of the offering of the Series A
Notes and the Issue Date thereof (such period, the Distribution Compliance Period), a beneficial
interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the
form of an interest in a Rule 144A Global Note or an IAI Global Note only if the transferor first
delivers to the Trustee a written certificate (in the form provided in Exhibit C hereto) to the
effect that such transfer is being made to a Person who the transferor reasonably believes is
purchasing for its own account or accounts as to which it exercises sole investment discretion and
that such Person is a QIB acquiring such Series A Notes in a transaction meeting the requirements
of Rule 144A or an IAI acquiring such Series A Notes pursuant to a private placement exemption
under the Securities Act, in each case in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction; provided that, in the case of a transfer to a
Person who takes delivery in the form of an interest in an IAI Global Note, such Person shall
deliver to the Trustee a written certificate in the form provided in Exhibit D hereto. After the
expiration of the Distribution Compliance Period, such certification requirements shall not apply
to such transfers of beneficial interests in the Regulation S Global Notes.
(d) Beneficial interests in a Rule 144A Global Note or an IAI Global Note may be transferred
to a Person who takes delivery in the form of an interest in a Regulation S Global Note, whether
before or after the expiration of the Distribution Compliance Period, only if the
transferor first delivers to the Trustee a written certificate (in the form provided in
Exhibit C or E hereto, as applicable) to the effect that such transfer is being made in accordance
with Rule 904 of Regulation S or Rule 144 (if available).
Section 3.04.
Restrictive Legends
.
(a) Except as provided in Section 3.03 hereof, prior to the Resale Restriction Termination
Date, each security certificate evidencing the Notes shall bear a legend in substantially the
following form:
THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY (NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN (OR
THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUERS THAT THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
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OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE THERETO UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR, IN THE CASE OF A
TRANSFER PURSUANT TO REGULATION S, THE DISTRIBUTION COMPLIANCE PERIOD DEFINED THEREIN) WHICH IS
APPLICABLE TO THIS SECURITY (THE RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE
ISSUERS OR THEIR RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(3) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), (4) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, IF AVAILABLE, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND
SUBJECT TO THE RIGHT OF THE ISSUERS OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE,
PLEDGE OR OTHER TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE
HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(b) Each security certificate evidencing 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.
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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, including Additional 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.
Section 4.02.
Special Mandatory Redemption
. Following the occurrence of a Special Mandatory Redemption Trigger Event, the Issuers shall
redeem the Notes as a whole (the Special Mandatory Redemption), upon notice as provided in this
Section 4.02, at a redemption price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon to the mandatory redemption date. Notice of such mandatory
redemption shall be given within ten days of the date of the Special Mandatory Redemption Trigger
Event by first-class mail, postage prepaid, mailed not less than 15 nor more than 30 days prior to
the redemption date, to the Trustee and to each Holder, at such Holders address appearing in the
Debt Security Register, and such notice shall state:
(a) that the Special Mandatory Redemption Trigger Event has occurred;
(b) the redemption date, which shall be no earlier than 15 days and no later than 30 days from
the date the notice is mailed; and
(c) the other information required by Section 3.02 of the Original Indenture.
Except to the extent any provision of this Section 4.02 conflicts with the provisions of Sections
3.01 to 3.03 of the Original Indenture, any redemption shall otherwise be made pursuant to the
provisions of Sections 3.01 to 3.03 of the Original Indenture.
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
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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) 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 Officer 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) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a description of the event 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 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;
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(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;
(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, refinancing, refunding 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;
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(b) the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not
more than three years;
(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 Property 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) In addition, the Issuers shall furnish to the Holders of Notes and to prospective
investors, upon the requests of Holders of Notes, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, so long as the Notes are not freely transferable under
the Securities Act.
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(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 Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Partnerships 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 (including Additional Interest,
if any) 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,
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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 Issuers assets. In case of any
such consolidation, amalgamation, merger, sale, conveyance, transfer, lease or other 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
Guarantors immediately after the word Issuers 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, or
Additional Interest with respect to, 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 30 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, 30 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 Partnerships 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
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
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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;
(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 debt, excluding any such Event of Default that
involves only one or more Subsidiary Guarantors), the principal amount of all
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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.
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, interest and Additional Interest, if any, 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 and Section 4.02 hereof,
(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.
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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 (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, interest and
Additional Interest, if any, 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
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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 (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 on, if any, interest and Additional Interest, if any, 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.
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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.
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, interest or Additional Interest, if any, on any Note and remaining unclaimed for two years
after such principal, premium, if any, interest or Additional Interest, if any, 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, interest or Additional Interest, if any, 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, interest, and Additional Interest, if
any, 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
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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 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, interest or Additional Interest, if any, 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.
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(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, interest or Additional Interest, if
any, 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 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 Guarantors 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
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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 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.
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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
reference to Article VI of this Supplemental Indenture. All references to interest in the
Original Indenture shall be deemed to include Additional Interest, if any, unless the context
otherwise requires.
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
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ISSUERS
:
PLAINS ALL AMERICAN PIPELINE, L.P.
By: Plains AAP, L.P., its General Partner
By: Plains All American GP LLC, its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PAA FINANCE CORP.
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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SUBSIDIARY GUARANTORS
:
PLAINS MARKETING, L.P.
By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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Signature Page to Ninth Supplemental Indenture
1 of 8
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PLAINS MARKETING GP INC.
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PMC (NOVA SCOTIA) COMPANY
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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Signature Page to Ninth Supplemental Indenture
2 of 8
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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BASIN HOLDINGS GP LLC
By: Plains Pipeline, L.P., its Sole Member
By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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BASIN PIPELINE HOLDINGS, L.P.
By: Basin Holdings GP LLC, its General Partner
By: Plains Pipeline, L.P., its Sole Member
By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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Signature Page to Ninth Supplemental Indenture
3 of 8
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RANCHO HOLDINGS GP LLC
By: Plains Pipeline, L.P., its Sole Member
By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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RANCHO PIPELINE HOLDINGS, L.P.
By: Rancho Holdings GP LLC, its General Partner
By: Plains Pipeline, L.P., its Sole Member
By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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PLAINS LPG SERVICES, L.P.
By: Plains LPG Services GP LLC, its General Partner
By: Plains Marketing, L.P., its Sole Member
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Signature Page to Ninth Supplemental Indenture
4 of 8
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By: Plains Marketing GP Inc., its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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LONE STAR TRUCKING, 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief Financial Officer
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Signature Page to Ninth Supplemental Indenture
5 of 8
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PLAINS MARKETING INTERNATIONAL 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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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PLAINS MARKETING INTERNATIONAL, L.P.
By: PLAINS MARKETING INTERNATIONAL
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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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Signature Page to Ninth Supplemental Indenture
6 of 8
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PLAINS LPG MARKETING, L.P.
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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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Signature Page to Ninth Supplemental Indenture
7 of 8
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TRUSTEE
:
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/
Ronda L. Parman
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Name:
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Ronda L. Parman
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Title:
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Vice President
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Signature Page to Ninth Supplemental Indenture
8 of 8
EXHIBIT A
(Form of Face of Note)
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CUSIP ____________
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No. ___
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ISIN ____________
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$_____________
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PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
6.125% Series ___Senior Notes due 2017
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, 2017.
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.
By: Plains AAP, L.P., its General Partner
By: 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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TRUSTEES 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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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)
6.125% Series ___Senior Notes due 2017
[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
[THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY (NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUERS THAT THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE THERETO UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR, IN THE CASE OF A
TRANSFER PURSUANT TO REGULATION S, THE DISTRIBUTION COMPLIANCE PERIOD DEFINED THEREIN) WHICH IS
APPLICABLE TO THIS SECURITY (THE RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE
ISSUERS OR THEIR RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(3) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
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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
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), (4) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, IF AVAILABLE, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES
WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUERS OR THE TRUSTEE FOR THE
SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL
BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION
DATE.]
3
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1.
Interest; Additional 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 6.125% per annum from ___, ___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 ___, ___. 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
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3
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To be included on Transfer Restricted Securities only.
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A-3
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, 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, premium 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 Ninth Supplemental Indenture dated as
of October 30, 2006 (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 $400 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, issue price and date of first payment of interest) 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 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
A-4
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 25 basis points, plus, in either
case, accrued and unpaid interest, including Additional Interest, if any, 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 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
to be redeemed.
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 UBS Securities LLC or another Reference Treasury Dealer appointed by
the Issuers.
Reference Treasury Dealer means (a) UBS Securities LLC and its successors; provided,
however, that if 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; and (b) any other Primary Treasury Dealer selected by the Issuers.
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.
Special Mandatory Redemption
. Following the occurrence of a Special Mandatory
Redemption Trigger Event, the Issuers shall redeem the Notes as a whole, upon notice as provided in
this paragraph 6, at a redemption price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest thereon to the mandatory redemption date. Notice of such
mandatory redemption shall be given within ten days of the date of the Special Mandatory Redemption
Trigger Event by first-class mail, postage prepaid, mailed not less than 15
nor more than 30 days prior to the redemption date, to the Trustee and to each
A-5
Holder, at such
Holders address appearing in the Debt Security Register, and such notice shall state:.
(a) that the Special Mandatory Redemption Trigger Event has occurred;
(b) the redemption date, which shall be no earlier than 15 days and no later
than 30 days from the date the notice is mailed; and
(c) the other information required by Section 3.02 of the Original Indenture.
Except to the extent any provision of this paragraph 6 conflicts with the provisions in Sections
3.01 to 3.03 of the Original Indenture, any redemption shall otherwise be made pursuant to the
provisions of Sections 3.01 to 3.03 of the Original Indenture.
7.
Notice of Redemption
. Except as described in paragraph 6 above with respect to
Special Mandatory 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 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.
8.
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.
9.
Persons Deemed Owners
. The registered Holder of a Note shall be treated as its
owner for all purposes.
10.
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
A-6
inconsistency, to provide for the assumption of an Issuers 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
Issuers 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.
11.
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, or Additional Interest with respect to,
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
30 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, 30 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 Partnerships 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 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 or Event of
Default (except
a Default or Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is
A-7
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 existing 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. 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.
12.
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.
13.
No Recourse Against Others
. The General Partner and its directors, officers,
employees and partners (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.
14.
Authentication
. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
15.
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).
16.
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.
17.
Additional Rights of Holders of Transfer Restricted Securities
. In addition to
the rights provided to Holders of Notes under the Indenture, Holders of Transfer Restricted
Securities shall have all the rights set forth in the Exchange and Registration Rights Agreement,
including the right to receive Additional Interest as set forth therein.
A-8
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
A-9
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
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(Insert assignees soc. sec. or tax I.D. no.)
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(Print or type assignees name, address and zip code)
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agent to transfer this Note on the books of the Issuers. The agent may substitute another to act
for him.
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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 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.)
A-10
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE
4
The original principal amount of this Global Note is ___. The following
increases or decreases in this Global Note have been made:
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Principal
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Amount of
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Amount of
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Amount of
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Signature of
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decrease in
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increase in
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this Global Note
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authorized
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Principal 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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4
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To be included only if the Note is issued in global form.
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A-11
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 Ninth Supplemental
Indenture (the Ninth Supplemental Indenture and, together with the Original Indenture, the
Indenture) dated as of October 30, 2006, among the Issuers, the Subsidiary Guarantors and the
Trustee, providing for the issuance of the Issuers 6.125% Senior Notes due 2017 (the Notes);
WHEREAS, Section 5.05 of the Ninth 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 used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
B-1
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 Ninth 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 ALL AMERICAN PIPELINE, L.P.
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By: Plains AAP, L.P., its General Partner
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By: 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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B-2
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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
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
PURSUANT TO RULE 144A OR RULE 501
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Re:
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6.125% Series [A/B] Senior Notes due 2017 of Plains All American Pipeline, L.P. and PAA
Finance Corp. (together, the Issuers)
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This Certificate relates to $___principal amount of the above captioned Notes held in
definitive form (the Securities) by ___(the Transferor).
The Transferor has requested the Trustee by written order to exchange or register the transfer of a
Security or Securities.
In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with the Indenture and the Supplemental Indenture
relative to the Securities and that the transfer of this Security does not require registration
under the Securities Act (as defined below) because:*
p
Such Security is being acquired for the Transferors own account without transfer.
p
Such Security is being transferred to a qualified institutional buyer (as defined in
Rule 144A under the Securities Act of 1933, as amended (the Securities Act)), in reliance on Rule
144A under the Securities Act and in accordance with any applicable securities laws of any state of
the United States or any other jurisdiction, that is purchasing for its own account or for the
account of another qualified institutional buyer, in each case to whom notice is given that the
transfer is being made in reliance on Rule 144A.
p
Such Security is being transferred (i) in accordance with Rule 144 under the
Securities Act (and based on an opinion of counsel if the Issuers or the Trustee so requests) or
(ii) pursuant to an effective registration statement under the Securities Act.
p
Such Security is being transferred to an institutional accredited investor within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act (and based on an
opinion of counsel if the Issuers or the Trustee so requests) and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction, that is purchasing for
its own account or for the account of another institutional accredited investor, together with a
certification in substantially the form of Exhibit D to the Supplemental Indenture and, to the
knowledge of the Transferor, such institutional accredited investor to whom such Security is to be
transferred is not an affiliate (as defined in Rule 144 under the Securities Act) of an Issuer.
C-1
p
Such Security is being transferred in reliance on and in compliance with another
exemption from the registration requirements of the Securities Act (and based on an opinion of
counsel if the Issuers so request).
* Check appropriate response.
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[INSERT NAME OF TRANSFEROR]
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By:
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Name:
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Title:
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Address:
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Date:
C-2
EXHIBIT D
TRANSFEREE LETTER OF REPRESENTATIONS
Plains All American Pipeline, L.P.
PAA Finance Corp.
c
/
o
U.S. Bank National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Attn: Corporate Trust Group
Ladies and Gentlemen:
In connection with our proposed purchase of $___aggregate principal amount of 6.125%
Senior Notes due 2017 (the Securities) of Plains All American Pipeline, L.P. and PAA Finance
Corp. (together, the Issuers):
1. We understand that the Securities have not been registered under the Securities Act of
1933, as amended (the Securities Act), or under any other applicable securities laws, and may not
be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing the Securities to offer, sell or otherwise
transfer such Securities prior to the date which is two years after the later of the date of
original issue and the last date on which the Issuers or any affiliate of an Issuer was the owner
of such Securities, or any predecessor, thereto (the Resale Restriction Termination Date) only
(a) to the Issuers, (b) pursuant to a registration statement that has been declared effective by
the Securities and Exchange Commission (the Commission), (c) for so long as the Securities are
eligible for resale pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a QIB) that purchases for its own
account or for the account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional accredited investor within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (an Institutional
Accredited Investor) that is acquiring the Securities for its own account or for the account of
another Institutional Accredited Investor for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the regulations of the
Securities Act and any other applicable securities laws or (e) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property and the property of
such investor account or accounts be at all times within our or their control. The foregoing
restrictions on resale will not apply subsequent to the Resale
Restriction Termination Date. If
any resale or other transfer of the Securities is proposed to be made pursuant to clause (d) above
prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Trustee, which shall provide, among
other things, that the transferee is an Institutional Accredited Investor and that it is acquiring
such Securities for investment purposes and not for distribution in violation of the Securities
Act. We acknowledge that the Issuers and the Trustee reserve the right prior to any offer, sale or
other transfer pursuant
to clause (d) or (e) prior to the Resale Restriction
D-1
Termination Date of the Securities to
require the delivery of an opinion of counsel, certifications and/or other information satisfactory
to the Issuers and the Trustee.
2. We are an Institutional Accredited Investor purchasing for our own account or for the
account of another Institutional Accredited Investor.
3. We are acquiring the Securities purchased by us for our own account, or for one or more
accounts as to each of which we exercise sole investment discretion, for investment purposes and
not with a view to, or for offer or sale in connection with any distribution in violation of, the
Securities Act. We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of investment in the Securities, we invest in securities
similar to the Securities in the normal course of our business and we, and all accounts for which
we are acting, are able to bear the economic risks of investment in the Securities.
4. You are entitled to rely upon this letter and you are irrevocably authorized to produce
this letter or a copy thereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
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Very truly yours,
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[NAME OF TRANSFEREE]
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By:
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Authorized Signatory
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Upon transfer, the Securities should be registered in the name of the new beneficial owner as
follows:
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Name:
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Address:
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Taxpayer ID No:
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D-2
EXHIBIT E
CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
Plains All American Pipeline, LP
PAA Finance Corp.
c/o U.S. Bank National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Attn: Corporate Trust Group
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Re:
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Plains All American Pipeline, L.P. and PAA Finance Corp. (the
Issuers) 6.125% Series [A/B] Senior Notes due 2017 (the Securities)
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Ladies and Gentlemen:
In connection with our proposed sale of $___aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the United States Securities Act of 1933, as amended (the Securities Act),
and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (ii) the transaction
was executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 904(a) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule
904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 904(b)(1).
You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or
E-1
legal proceedings or official inquiry with respect to the matters covered hereby. Terms used
in this certificate have the meanings set forth in Regulation S.
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Very truly yours,
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[NAME OF TRANSFEROR]
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By:
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Authorized Signatory
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E-2
Execution
Version
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
as Issuers
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Guarantors
$600,000,000
SERIES A AND SERIES B
6.650% SENIOR NOTES DUE 2037
TENTH
SUPPLEMENTAL
INDENTURE
Dated as of October 30, 2006
U.S. BANK NATIONAL ASSOCIATION
as Trustee
TABLE OF CONTENTS
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ARTICLE I
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1
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Section 1.01.
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Establishment
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1
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ARTICLE II DEFINITIONS AND INCORPORATION BY REFERENCE
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2
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Section 2.01.
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Definitions
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2
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Section 2.02.
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Other Definitions
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8
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ARTICLE III THE NOTES
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8
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Section 3.01.
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Form
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8
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Section 3.02.
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Issuance of Additional Notes
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9
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Section 3.03.
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Transfer of Transfer Restricted Securities
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9
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Section 3.04.
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Restrictive Legends
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11
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ARTICLE IV REDEMPTION AND PREPAYMENT
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13
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Section 4.01.
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Optional Redemption
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13
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Section 4.02.
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Special Mandatory Redemption
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13
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ARTICLE V COVENANTS
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13
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Section 5.01.
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Compliance Certificate
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13
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Section 5.02.
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Limitations on Liens
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14
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Section 5.03.
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Restriction of Sale-Leaseback Transactions
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15
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Section 5.04.
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SEC Reports; Financial Statements
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16
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Section 5.05.
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Additional Subsidiary Guarantees
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17
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ARTICLE VI SUCCESSORS
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17
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Section 6.01.
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Consolidation and Mergers of the Issuers
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17
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Section 6.02.
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Rights and Duties of Successor
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17
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Section 6.03.
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Supplemental Indenture
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18
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ARTICLE VII DEFAULTS AND REMEDIES
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18
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Section 7.01.
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Events of Default
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18
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
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20
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Section 8.01.
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Option to Effect Legal Defeasance or Covenant Defeasance
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20
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Section 8.02.
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Legal Defeasance and Discharge
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20
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Section 8.03.
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Covenant Defeasance
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21
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Section 8.04.
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Conditions to Legal or Covenant Defeasance
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21
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Section 8.05.
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Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions
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22
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Section 8.06.
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Repayment to Issuers
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23
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Section 8.07.
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Reinstatement
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23
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ARTICLE IX SUBSIDIARY GUARANTEES
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23
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Section 9.01.
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Subsidiary Guarantees
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23
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Section 9.02.
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Limitation on Liability
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25
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Section 9.03.
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Successors and Assigns
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25
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Section 9.04.
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No Waiver
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25
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Section 9.05.
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Modification
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26
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Section 9.06.
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Execution of Supplemental Indenture for Future Subsidiary Guarantors
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26
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Section 9.07.
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Release of Guarantee
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26
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ARTICLE X MISCELLANEOUS
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27
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Section 10.01.
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Additional Amendments
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27
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Section 10.02.
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Integral Part
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27
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Section 10.03.
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Adoption, Ratification and Confirmation
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27
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Section 10.04.
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Counterparts
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27
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Section 10.05.
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Governing Law
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27
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EXHIBIT A:
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Form of Note
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EXHIBIT B:
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Form of Supplemental Indenture
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EXHIBIT C:
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Certificate to be Delivered Upon Exchange or Registration of Transfer of Securities Pursuant to Rule144A or Rule 501
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EXHIBIT D:
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Transferee Letter of Representations
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EXHIBIT E:
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Certificate to be Delivered Upon Exchange or Registration of Transfer of Securities Pursuant to Regulation S
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-ii-
TENTH SUPPLEMENTAL INDENTURE dated as of October 30, 2006 (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 6.650% Senior
Notes
due 2037 (the Notes). As provided in Article III hereof, the Notes shall be issued as either
Series A Notes or Series B Notes, and any Notes may have such additional designation.
(b) There are to be authenticated and delivered $600,000,000 principal amount of Series A
Notes on the Issue Date, and from time to time thereafter there may be authenticated and delivered
an unlimited principal amount of Additional Notes. Further, from time to time after the Issue
Date, Series B Notes may be authenticated and delivered in a principal amount equal to the
principal amount of the Series A Notes exchanged therefor pursuant to an Exchange Offer.
(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:
Additional Interest means all additional interest owing on the Notes pursuant to a
registration default under an Exchange and Registration Rights Agreement.
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
-2-
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 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.
Exchange and Registration Rights Agreement means (a) the Registration Rights Agreement among
the Partnership, PAA Finance, the Subsidiary Guarantors and the Initial Purchasers dated the Issue
Date relating to the Series A Notes issued on such date and (b) any similar agreement that the
Issuers may enter into in relation to any other Series A Notes, in each case as such agreement may
be amended or modified from time to time.
Exchange Offer means the offer by the Issuers to the Holders of all outstanding Transfer
Restricted Securities to exchange all such outstanding Transfer Restricted Securities held by such
Holders for Series B Notes, in an aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such exchange offer by such Holders.
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.
-3-
guarantee means a guarantee (other than by endorsement of negotiable instruments for
collection in the ordinary course of business), direct or indirect, in any manner (including,
without limitation, by way of a pledge of assets, or through letters of credit or reimbursement,
claw-back, make-well, or keep-well agreements in respect thereof), of all or any part of the
payment of any Debt. The term guarantee used as a verb has a corresponding meaning.
Initial Purchasers means Citigroup Global Markets Inc. and the other initial purchasers
party to the initial Exchange and Registration Rights Agreement.
Issue Date means, with respect to the Notes, the date on which the Notes are initially
issued.
Notes has the meaning assigned to it in Section 1.01(a) hereof, and includes both the Series
A Notes and the Series B Notes.
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 of 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.
Pacific means Pacific Energy Partners, L.P.
Pacific Merger means the merger of the Pacific into the Partnership pursuant to the terms of
the Pacific Merger Agreement.
Pacific Merger Agreement means the Agreement and Plan of Merger dated as of June 11, 2006,
by and among the Partnership, Plains AAP, L.P., Plains All American GP LLC, Pacific, Pacific Energy
Management LLC and Pacific Energy GP, LP, as it may be amended from time to time.
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 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, repairmens, materialmens, suppliers, carriers, landlords, warehousemens or
similar Lien incurred in the ordinary course of business which is not
-4-
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;
(8) any Lien incurred in the ordinary course of business in connection with workers
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
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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 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 Partnerships or any Restricted Subsidiarys 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
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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, and 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.
Securities shall have the meaning assigned to such term in the Exchange and Registration
Rights Agreement relating thereto.
Series A Notes means the Issuers 6.650% Series A Senior Notes due 2037 to be issued
pursuant to this Supplemental Indenture.
Series B Notes means the Issuers 6.650% Series B Notes due 2037 to be issued pursuant to an
Exchange Offer.
Special Mandatory Redemption Trigger Event means the earlier to occur of the following two
events:
(1) February 15, 2007, if the Pacific Merger has not been consummated by such date; or
(2) the termination of the Pacific Merger Agreement.
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.
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.
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Notwithstanding anything in the Indenture to the contrary, PAA Finance, Atchafalaya Pipeline,
L.L.C. and Andrews Partners, LLC shall not be Subsidiary Guarantors.
Transfer Restricted Securities means any Notes outstanding prior to the Resale Restriction
Termination Date with respect to such Notes and which must bear the legend required under Section
3.04 hereof.
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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Distribution Compliance Period
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3.03
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(c)
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Event of Default
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7.01
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IAI Global Note
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3.01
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IAIs
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3.01
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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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QIBs
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3.01
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Regulation S
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3.01
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Regulation S Global Note
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3.01
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Required Filing Dates
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5.04
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Resale Restriction Termination Date
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3.04
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Rule 144A
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3.01
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Rule 144A Global Note
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3.01
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Special Mandatory Redemption
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4.02
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Successor Company
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6.01
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U.S. Persons
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3.01
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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 as Series A Notes, with Series A Notes initially resold in reliance upon Rule 144A and
Regulation S being represented by separate Global Securities, which are referred to herein as the
Rule 144A Global Note and the Regulation S Global Note, respectively. The Series A Notes and
Trustees 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. The Series A Notes constituting Transfer
Restricted Securities will be resold initially only to (a) Qualified Institutional Buyers (as such
term is defined in Section 144A of the Securities Act) (QIBs) in reliance on Rule 144A of the
Securities Act (Rule 144A) and (b) Persons other than U.S. Persons (as defined under Regulation S
under the Securities Act (Regulation S)) (U.S.
-8-
Persons) in reliance on Regulation S.
Thereafter, the Series A Notes may be transferred to, among others, QIBs, purchasers in reliance
upon Regulation S and institutional accredited investors (as defined in subparagraph (a)(1), (2),
(3) or (7) of Rule 501 of the Securities Act (IAIs)) in accordance with the procedures set forth
in Rule 501 of the Securities Act, provided that any Series A Notes constituting Transfer
Restricted Securities that are transferred to IAIs who are not QIBs shall be issued only in
definitive form or in the form of interests in a separate Global Security (the IAI Global Note).
Pursuant to the terms of an Exchange and Registration Rights Agreement, upon consummation of the
Exchange Offer contemplated thereby, the Series A Notes constituting Transfer Restricted Securities
will be exchanged by the Holders for Series B Notes to be issued by the Issuers in accordance with
Section 3.03 hereof. The Series B Notes shall be issued initially in the form of one or more
Global Securities, and the Series B Notes and the Trustees certificate of authentication shall be
substantially in the form of Exhibit A hereto.
Section 3.02.
Issuance of Additional Notes
. The Issuers may, from time to time, issue an
unlimited amount of additional Series A Notes (Additional Notes) under the Indenture, which shall
be issued in the same form as the Series A Notes issued on the Issue Date and which shall have
identical terms as the Series A Notes issued on the Issue Date other than with respect to the issue
date, issue price and date of first payment of interest. The Series A Notes issued on the Issue
Date shall be limited in aggregate principal amount to $600,000,000. The Series A Notes issued on
the Issue Date and any Additional Notes subsequently issued, together with any Series B Notes
issued in exchange therefor pursuant to an Exchange Offer, shall be treated as a single series for
all purposes under the Indenture, including waivers, amendments, redemptions and offers to
purchase. If the Issuers issue additional Series A Notes prior to the completion of an Exchange
Offer, the period of the resale restrictions applicable to any Series A Notes previously offered
and sold in reliance on Rule 144A will be automatically extended to the last day of the period of
any resale restrictions imposed on any such additional Series A Notes.
Section 3.03.
Transfer of Transfer Restricted Securities
.
(a) When Notes are presented to the Registrar with the request to register the transfer of
such Notes or exchange such Notes for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer or make the exchange in accordance with
Article II of the Original Indenture. In addition, in the case of Series A Notes that are Transfer
Restricted Securities in definitive form, such request to register the transfer or make the
exchange shall be accompanied by the following additional information and documents, as applicable,
upon which the Registrar may conclusively rely:
(1) if such Transfer Restricted Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder, without transfer, a certification from
such Holder to that effect in substantially the form of Exhibit C hereto; or
(2) if such Transfer Restricted Securities are being transferred (i) to a QIB in
accordance with Rule 144A under the Securities Act or (ii) pursuant to an exemption from
registration in accordance with Rule 144 under the Securities Act (and based upon an opinion
of counsel if the Issuers or the Trustee so requests) or (iii)
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pursuant to an effective
registration statement under the Securities Act, a certification to that effect from such
Holder in substantially the form of Exhibit C hereto; or
(3) if such Transfer Restricted Securities are being transferred to an IAI within the
meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act (and based upon
an opinion of counsel if the Issuers or the Trustee so requests), a certification to that
effect from such Holder in substantially the form of Exhibit C hereto and a certification
from the applicable transferee in substantially the form of Exhibit D hereto; or
(4) if such Transfer Restricted Securities are being transferred to Persons other than
U.S. Persons in reliance on Regulation S, a certification to that effect from such Holder in
substantially the form of Exhibit E hereto; or
(5) if such Transfer Restricted Securities are being transferred in reliance on another
exemption from the registration requirements of the Securities Act (and based upon an
opinion of counsel if the Issuers or the Trustee so requests), a certification to that
effect from such Holder in substantially the form of Exhibit C hereto.
(b) Upon any sale or transfer of a Transfer Restricted Security (including any Transfer
Restricted Security represented by a Global Security) pursuant to Rule 144 under the Securities Act
or an effective registration statement under the Securities Act:
(1) in the case of any Transfer Restricted Security that is in the form of a definitive
Note, the Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a definitive Note that does not bear the legend set forth in
Section 3.04(a) below and rescind any restriction on the transfer of such Transfer
Restricted Security; and
(2) in the case of any Transfer Restricted Security represented by a Global Security,
such Transfer Restricted Security shall not be required to bear the legend set forth in
Section 3.04(a) below if all other interests in such Global Security have been or are
concurrently being sold or transferred pursuant to Rule 144 under the Securities Act or
pursuant to an effective registration statement under the Securities Act.
Notwithstanding the foregoing, upon consummation of an Exchange Offer, the Issuers shall issue and,
upon receipt of an authentication order in accordance with Section 2.05 of the Original Indenture,
the Trustee shall authenticate Series B Notes in exchange for Series A Notes accepted for exchange
in the Exchange Offer, which Series B Notes shall not bear the legend set forth in Section 3.04(a)
below, and the Registrar shall rescind any restriction on the transfer of such Notes, in each case
unless the Holder of such Series A Notes is either (1) is an affiliate of the Issuers within the
meaning of Rule 405 under the Securities Act or an Initial Purchaser holding Series A Notes
acquired by it and having the status of an unsold allotment in the initial offering and sale of
Series A Notes pursuant to the Purchase Agreement, dated as of October 23, 2006, between the
Issuers, the other parties referred to as Plains Parties therein and the Initial Purchasers, (2)
does not acquire the Series B Notes in the ordinary course of such Holders
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business or (3) has an
arrangement or understanding with any Person to participate in the Exchange Offer for the purpose
of distributing such Series B Notes or is engaged in, and intends to engage in, any such
distribution. The Issuers shall identify to the Trustee such Holders of the Notes in a written
certification signed by an officer of each Issuer and, absent certification from the Issuers to
such effect, the Trustee shall assume that there are no such Holders.
(c) Until the 40th day after the later of the commencement of the offering of the Series A
Notes and the Issue Date thereof (such period, the Distribution Compliance Period), a beneficial
interest in a Regulation S Global Note may be transferred to a Person who takes delivery in the
form of an interest in a Rule 144A Global Note or an IAI Global Note only if the transferor first
delivers to the Trustee a written certificate (in the form provided in Exhibit C hereto) to the
effect that such transfer is being made to a Person who the transferor reasonably believes is
purchasing for its own account or accounts as to which it exercises sole investment discretion and
that such Person is a QIB acquiring such Series A Notes in a transaction meeting the requirements
of Rule 144A or an IAI acquiring such Series A Notes pursuant to a private placement exemption
under the Securities Act, in each case in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction; provided that, in the case of a transfer to a
Person who takes delivery in the form of an interest in an IAI Global Note, such Person shall
deliver to the Trustee a written certificate in the form provided in Exhibit D hereto. After the
expiration of the Distribution Compliance Period, such certification requirements shall not apply
to such transfers of beneficial interests in the Regulation S Global Notes.
(d) Beneficial interests in a Rule 144A Global Note or an IAI Global Note may be transferred
to a Person who takes delivery in the form of an interest in a Regulation S Global Note,
whether before or after the expiration of the Distribution Compliance Period, only if the
transferor first delivers to the Trustee a written certificate (in the form provided in Exhibit C
or E hereto, as applicable) to the effect that such transfer is being made in accordance with Rule
904 of Regulation S or Rule 144 (if available).
Section 3.04.
Restrictive Legends
.
(a) Except as provided in Section 3.03 hereof, prior to the Resale Restriction Termination
Date, each security certificate evidencing the Notes shall bear a legend in substantially the
following form:
THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY (NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN (OR
THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUERS THAT THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
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OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE THERETO UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR, IN THE CASE OF A
TRANSFER PURSUANT TO REGULATION S, THE DISTRIBUTION COMPLIANCE PERIOD DEFINED THEREIN) WHICH IS
APPLICABLE TO THIS SECURITY (THE RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE
ISSUERS OR THEIR RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(3) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT), (4) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION (AS SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT, IF AVAILABLE, OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES
WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE ISSUERS OR THE TRUSTEE FOR THE
SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL
BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE RESTRICTION TERMINATION DATE.
(b) Each security certificate evidencing 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.
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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, including Additional 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.
Section 4.02.
Special Mandatory Redemption
. Following the occurrence of a Special
Mandatory Redemption Trigger Event, the Issuers shall redeem the Notes as a whole (the Special
Mandatory Redemption), upon notice as provided in this Section 4.02, at a redemption price equal
to 101% of the aggregate principal amount thereof plus accrued and unpaid interest thereon to the
mandatory redemption date. Notice of such mandatory redemption shall be given within ten days of
the date of the Special Mandatory Redemption Trigger Event by first-class mail, postage prepaid,
mailed not less than 15 nor more than 30 days prior to the redemption date, to the Trustee and to
each Holder, at such Holders address appearing in the Debt Security Register, and such notice
shall state:
(a) that the Special Mandatory Redemption Trigger Event has occurred;
(b) the redemption date, which shall be no earlier than 15 days and no later than 30 days from
the date the notice is mailed; and
(c) the other information required by Section 3.02 of the Original Indenture.
Except to the extent any provision of this Section 4.02 conflicts with the provisions of Sections
3.01 to 3.03 of the Original Indenture, any redemption shall otherwise be made pursuant to the
provisions of Sections 3.01 to 3.03 of the Original Indenture.
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
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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) 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 Officer 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) and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the principal of or interest, if
any, on the Notes is prohibited or if such event has occurred, a description of the event 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 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;
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(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;
(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, refinancing, refunding 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;
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(b) the Sale-Leaseback Transaction involves a lease for a period, including renewals, of not
more than three years;
(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 Property 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) In addition, the Issuers shall furnish to the Holders of Notes and to prospective
investors, upon the requests of Holders of Notes, any information required to be delivered pursuant
to Rule 144A(d)(4) under the Securities Act, so long as the Notes are not freely transferable under
the Securities Act.
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(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 Trustees receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained therein,
including the Partnerships 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 (including Additional Interest,
if any) 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,
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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 Issuers assets. In case of any such consolidation, amalgamation, merger, sale,
conveyance, transfer, lease or other 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
Guarantors immediately after the word Issuers 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, or
Additional Interest with respect to, 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 30 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, 30 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 Partnerships 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 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
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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;
(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 debt, excluding any such Event of Default that
involves only one or more Subsidiary Guarantors), the principal amount of all
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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.
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, interest and Additional Interest, if any, 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 and Section 4.02 hereof,
(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.
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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 (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, interest and
Additional Interest, if any, 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
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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 (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 on, if any, interest and Additional Interest,
if any, 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.
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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.
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, interest or Additional Interest, if any, on any Note and remaining unclaimed for two years
after such principal, premium, if any, interest or Additional Interest, if any, 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, interest or Additional
Interest, if any, 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, interest, and Additional Interest, if any, 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
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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 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, interest or Additional Interest, if any, 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.
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(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, interest or Additional Interest, if
any, 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 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 Guarantors 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
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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 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.
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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
reference to Article VI of this Supplemental Indenture. All references to interest in the
Original Indenture shall be deemed to include Additional Interest, if any, unless the context
otherwise requires.
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
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ISSUERS
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PLAINS ALL AMERICAN PIPELINE, L.P.
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By:
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Plains AAP, L.P., its General Partner
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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and Chief Financial Officer
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PAA FINANCE CORP.
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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and Chief Financial Officer
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SUBSIDIARY GUARANTORS
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PLAINS MARKETING, L.P.
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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and Chief Financial Officer
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Signature Page to Tenth Supplemental Indenture
1 of 8
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PLAINS PIPELINE, L.P.
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PLAINS MARKETING GP INC.
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive 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., 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PMC (NOVA SCOTIA) COMPANY
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By:
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/s/ Phil Kramer
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Phil Kramer
Executive Vice President
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Signature Page to Tenth Supplemental Indenture
2 of 8
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PLAINS MARKETING CANADA, L.P.
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By:
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PMC (Nova Scotia) Company, its General Partner
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By:
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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
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BASIN HOLDINGS GP LLC
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By:
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Plains Pipeline, 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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BASIN PIPELINE HOLDINGS, L.P.
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By:
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Basin Holdings GP LLC, its General Partner
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By:
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Plains Pipeline, 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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Signature Page to Tenth Supplemental Indenture
3 of 8
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RANCHO HOLDINGS GP LLC
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By:
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Plains Pipeline, 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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RANCHO PIPELINE HOLDINGS, L.P.
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By:
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Rancho Holdings GP LLC, its General Partner
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By:
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Plains Pipeline, 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President
and Chief Financial Officer
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PLAINS LPG SERVICES 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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/s/ Phil Kramer
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Phil Kramer
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Executive 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, its General Partner
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By:
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Plains Marketing, L.P., its Sole Member
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Signature Page to Tenth Supplemental Indenture
4 of 8
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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Signature Page to Tenth Supplemental Indenture
5 of 8
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PLAINS MARKETING INTERNATIONAL 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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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PLAINS MARKETING INTERNATIONAL, L.P.
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By:
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PLAINS MARKETING INTERNATIONAL 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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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Signature Page to Tenth Supplemental Indenture
6 of 8
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PLAINS LPG MARKETING, 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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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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Signature Page to Tenth Supplemental Indenture
7 of 8
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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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/s/ Ronda L. Parman
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Name:
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Ronda L. Parman
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Title:
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Vice President
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Signature Page to Tenth Supplemental Indenture
8 of 8
EXHIBIT A
(Form of Face of Note)
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CUSIP ______
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No. ___
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ISIN ______
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$_______
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PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
6.650% Series ___Senior Notes due 2037
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, 2037.
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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Plains AAP, L.P., its General Partner
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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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TRUSTEES CERTIFICATE OF
AUTHENTICATION
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This is one of the Debt Securities of the series designated therein referred to in the
within-mentioned Indenture.
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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)
6.650% Series ___Senior Notes due 2037
[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
[THE ISSUANCE AND SALE OF THIS SECURITY (AND ANY GUARANTEE HEREOF) HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY (NOR ANY GUARANTEE HEREOF) NOR ANY INTEREST OR PARTICIPATION HEREIN OR
THEREIN MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. THE
HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS SECURITY, AGREES FOR THE BENEFIT OF THE ISSUERS THAT THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE THERETO UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR, IN THE CASE OF A
TRANSFER PURSUANT TO REGULATION S, THE DISTRIBUTION COMPLIANCE PERIOD DEFINED THEREIN) WHICH IS
APPLICABLE TO THIS SECURITY (THE RESALE RESTRICTION TERMINATION DATE) OTHER THAN (1) TO THE
ISSUERS OR THEIR RESPECTIVE SUBSIDIARIES, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (RULE 144A), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(3) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN RULE
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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
501(A)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT), (4) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION (AS SUCH TERMS ARE DEFINED
IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(5) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, INCLUDING THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR (6)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, SUBJECT IN EACH OF THE
FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF
SUCH INVESTOR ACCOUNT OR ACCOUNTS BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE
RIGHT OF THE ISSUERS OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER
TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER
THE RESALE RESTRICTION TERMINATION DATE.]
3
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
1.
Interest; Additional 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 6.650% per annum from ___, ___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 ___, ___. 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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3
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To be included on Transfer Restricted
Securities only.
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A-3
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, premium 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 Tenth Supplemental Indenture dated as
of October 30, 2006 (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 $600 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, issue price and date of first payment of interest) 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 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
A-4
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 30 basis points, plus, in either
case, accrued and unpaid interest, including Additional Interest, if any, 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 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
to be redeemed.
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 UBS Securities LLC or another Reference Treasury Dealer appointed by
the Issuers.
Reference Treasury Dealer means (a) UBS Securities LLC and its successors; provided,
however, that if 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; and (b) any other Primary Treasury Dealer selected by the Issuers.
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.
Special Mandatory Redemption
. Following the occurrence of a Special Mandatory
Redemption Trigger Event, the Issuers shall redeem the Notes as a whole, upon notice as provided in
this paragraph 6, at a redemption price equal to 101% of the aggregate principal amount thereof
plus accrued and unpaid interest thereon to the mandatory redemption date. Notice of such
mandatory redemption shall be given within ten days of the date of the Special Mandatory Redemption
Trigger Event by first-class mail, postage prepaid, mailed not less than 15
nor more than 30 days prior to the redemption date, to the Trustee and to each
A-5
Holder, at such
Holders address appearing in the Debt Security Register, and such notice shall state:.
(a) that the Special Mandatory Redemption Trigger Event has occurred;
(b) the redemption date, which shall be no earlier than 15 days and no later
than 30 days from the date the notice is mailed; and
(c) the other information required by Section 3.02 of the Original Indenture.
Except to the extent any provision of this paragraph 6 conflicts with the provisions in Sections
3.01 to 3.03 of the Original Indenture, any redemption shall otherwise be made pursuant to the
provisions of Sections 3.01 to 3.03 of the Original Indenture.
7.
Notice of Redemption
. Except as described in paragraph 6 above with respect to
Special Mandatory 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 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.
8.
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.
9.
Persons Deemed Owners
. The registered Holder of a Note shall be treated as its
owner for all purposes.
10.
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
A-6
inconsistency, to provide for the assumption of an Issuers 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
Issuers 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.
11.
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, or Additional Interest with respect to,
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
30 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, 30 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 Partnerships 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 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 or Event of
Default (except
a Default or Event of Default relating to the payment of principal, premium, if any, or
interest) if it determines that withholding notice is
A-7
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 existing 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. 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.
12.
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.
13.
No Recourse Against Others
. The General Partner and its directors, officers,
employees and partners (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.
14.
Authentication
. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
15.
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).
16.
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.
17.
Additional Rights of Holders of Transfer Restricted Securities
. In addition to
the rights provided to Holders of Notes under the Indenture, Holders of Transfer Restricted
Securities shall have all the rights set forth in the Exchange and Registration Rights Agreement,
including the right to receive Additional Interest as set forth therein.
A-8
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
A-9
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
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and irrevocably appoint
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agent to transfer this Note on the books of the Issuers. The agent may substitute another to act
for him.
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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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A-10
SCHEDULE OF INCREASES OR DECREASES IN THE GLOBAL NOTE
4
The original principal amount of this Global Note is
. The following
increases or decreases in this Global Note have been made:
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Principal
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Amount of
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Amount of
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Amount of
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Signature of
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decrease in
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increase in
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this Global Note
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authorized
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Principal 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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4
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To be included only if the Note is issued in
global form.
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A-11
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 Tenth Supplemental
Indenture (the Tenth Supplemental Indenture and, together with the Original Indenture, the
Indenture) dated as of October 30, 2006, among the Issuers, the Subsidiary Guarantors and the
Trustee, providing for the issuance of the Issuers 6.650% Senior Notes due 2037 (the Notes);
WHEREAS, Section 5.05 of the Tenth 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 used in this Supplemental
Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.
B-1
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 Tenth 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 ALL AMERICAN PIPELINE, L.P.
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By:
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Plains AAP, L.P., its General Partner
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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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B-2
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[SUBSIDIARY GUARANTOR],
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By:
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Name:
Title:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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Name:
Title:
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B-3
EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
PURSUANT TO RULE 144A OR RULE 501
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Re:
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6.650% Series [A/B] Senior Notes due 2037 of Plains All American Pipeline, L.P. and PAA
Finance Corp. (together, the Issuers)
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This Certificate relates to $
principal amount of the above captioned Notes held
in definitive form (the Securities) by
(the Transferor).
The Transferor has requested the Trustee by written order to exchange or register the transfer of a
Security or Securities.
In connection with such request and in respect of each such Security, the Transferor does
hereby certify that the Transferor is familiar with the Indenture and the Supplemental Indenture
relative to the Securities and that the transfer of this Security does not require registration
under the Securities Act (as defined below) because:*
o
Such Security is being acquired for the Transferors own account without transfer.
o
Such Security is being transferred to a qualified institutional buyer (as defined in
Rule 144A under the Securities Act of 1933, as amended (the Securities Act)), in reliance on Rule
144A under the Securities Act and in accordance with any applicable securities laws of any state of
the United States or any other jurisdiction, that is purchasing for its own account or for the
account of another qualified institutional buyer, in each case to whom notice is given that the
transfer is being made in reliance on Rule 144A.
o
Such Security is being transferred (i) in accordance with Rule 144 under the
Securities Act (and based on an opinion of counsel if the Issuers or the Trustee so requests) or
(ii) pursuant to an effective registration statement under the Securities Act.
o
Such Security is being transferred to an institutional accredited investor within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act pursuant to a private
placement exemption from the registration requirements of the Securities Act (and based on an
opinion of counsel if the Issuers or the Trustee so requests) and in accordance with any applicable
securities laws of any state of the United States or any other jurisdiction, that is purchasing for
its own account or for the account of another institutional accredited investor, together with a
certification in substantially the form of Exhibit D to the Supplemental Indenture and, to the
knowledge of the Transferor, such institutional accredited investor to whom such
Security is to be transferred is not an affiliate (as defined in Rule 144 under the
Securities Act) of an Issuer.
C-1
o
Such Security is being transferred in reliance on and in compliance with another
exemption from the registration requirements of the Securities Act (and based on an opinion of
counsel if the Issuers so request).
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*
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Check appropriate response.
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[INSERT NAME OF TRANSFEROR]
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By:
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Name:
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Title:
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Address:
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Date:
C-2
EXHIBIT D
TRANSFEREE LETTER OF REPRESENTATIONS
Plains All American Pipeline, L.P.
PAA Finance Corp.
c
/
o
U.S. Bank National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Attn: Corporate Trust Group
Ladies and Gentlemen:
In connection with our proposed purchase of $
aggregate principal amount of
6.650% Senior Notes due 2037 (the Securities) of Plains All American Pipeline, L.P. and PAA
Finance Corp. (together, the Issuers):
1. We understand that the Securities have not been registered under the Securities Act of
1933, as amended (the Securities Act), or under any other applicable securities laws, and may not
be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing the Securities to offer, sell or otherwise
transfer such Securities prior to the date which is two years after the later of the date of
original issue and the last date on which the Issuers or any affiliate of an Issuer was the owner
of such Securities, or any predecessor, thereto (the Resale Restriction Termination Date) only
(a) to the Issuers, (b) pursuant to a registration statement that has been declared effective by
the Securities and Exchange Commission (the Commission), (c) for so long as the Securities are
eligible for resale pursuant to Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a QIB) that purchases for its own
account or for the account of a QIB to whom notice is given that the transfer is being made in
reliance on Rule 144A, (d) to an institutional accredited investor within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (an Institutional
Accredited Investor) that is acquiring the Securities for its own account or for the account of
another Institutional Accredited Investor for investment purposes and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the regulations of the
Securities Act and any other applicable securities laws or (e) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in each of the
foregoing cases to any requirement of law that the disposition of our property and the property of
such investor account or accounts be at all times within our or their control. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If
any resale or other transfer of the Securities is proposed to be made pursuant to clause (d) above
prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Trustee, which shall provide, among
other things, that the transferee is an Institutional Accredited Investor and that it is acquiring
such Securities for investment purposes and not for distribution in violation of the Securities
Act. We acknowledge that the Issuers and the Trustee reserve the right prior to any offer, sale or
other transfer pursuant
to clause (d) or (e) prior to the Resale Restriction
D-1
Termination Date of the Securities to
require the delivery of an opinion of counsel, certifications and/or other information satisfactory
to the Issuers and the Trustee.
2. We are an Institutional Accredited Investor purchasing for our own account or for the
account of another Institutional Accredited Investor.
3. We are acquiring the Securities purchased by us for our own account, or for one or more
accounts as to each of which we exercise sole investment discretion, for investment purposes and
not with a view to, or for offer or sale in connection with any distribution in violation of, the
Securities Act. We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of investment in the Securities, we invest in securities
similar to the Securities in the normal course of our business and we, and all accounts for which
we are acting, are able to bear the economic risks of investment in the Securities.
4. You are entitled to rely upon this letter and you are irrevocably authorized to produce
this letter or a copy thereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
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Very truly yours,
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[NAME OF TRANSFEREE]
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By:
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Authorized Signatory
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Upon transfer, the Securities should be registered in the name of the new beneficial owner as
follows:
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Name:
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Address:
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Taxpayer ID No:
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D-2
EXHIBIT E
CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
Plains All American Pipeline, LP
PAA Finance Corp.
c/o U.S. Bank National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Attn: Corporate Trust Group
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Re:
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Plains All American Pipeline, L.P. and PAA Finance Corp. (the
Issuers) 6.650% Series [A/B] Senior Notes due 2037 (the Securities)
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Ladies and Gentlemen:
In connection with our proposed sale of $
aggregate principal amount of the
Securities, we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the United States Securities Act of 1933, as amended (the Securities Act),
and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (ii) the transaction
was executed in, on or through the facilities of a designated off-shore securities
market and neither we nor any person acting on our behalf knows that the transaction
has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 904(a) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule
904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 904(b)(1).
You and the Issuers are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or
E-1
legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
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Very truly yours,
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[ NAME OF TRANSFEROR ]
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By:
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Authorized Signatory
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E-2
Execution
Version
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMONG
PLAINS ALL AMERICAN PIPELINE, L.P.,
PAA FINANCE CORP.,
THE GUARANTORS
AND
THE INITIAL PURCHASERS
Dated as of October 30, 2006
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
6.125% Senior Notes due 2017
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
October 30, 2006
Citigroup Global Markets Inc.
UBS Securities LLC
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
SunTrust Capital Markets, Inc.
Comerica Securities, Inc.
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
Fortis Securities LLC
HSBC Securities (USA) Inc.
ING Financial Markets LLC
Mitsubishi UFJ Securities International plc
Piper Jaffray & Co.
RBC Capital Markets Corporation
Scotia Capital (USA) Inc.
Daiwa Securities America Inc.
SG Americas Securities, LLC
Wedbush Morgan Securities Inc.
Wells Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
388 Greenwich St., 34th Floor
New York, New York 10013
Ladies and Gentlemen:
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) and the Guarantors listed on Schedule 1 hereto (the Guarantors), propose to issue and
sell to the initial purchasers listed on Schedule 2 hereto (the Initial Purchasers), upon the
terms set forth in a purchase agreement dated October 23, 2006 (the Purchase Agreement),
$400,000,000 principal amount of 6.125% Senior Notes due 2017 (the Securities) and $600,000,000
principal amount of 6.650% Senior Notes due 2037 (the 2037
Notes) relating to the initial placement of the Securities and the 2037 Notes (the Initial
Placement). To induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy
a condition of your obligations thereunder, the Issuers and the Guarantors agree with you for your
benefit and the benefit of the other holders from time to time of the Securities (including the
Initial Purchasers) (each a Holder and, together, the Holders), as follows:
1.
Definitions
. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
2037 Notes shall have the meaning set forth in the preamble hereto.
Act shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Affiliate of any specified Person shall mean any other Person that, directly or indirectly,
is in control of, is controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person whether by contract or
otherwise; and the terms controlling and controlled shall have meanings correlative to the
foregoing.
Broker-Dealer shall mean any broker or dealer registered as such under the Exchange Act.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
Commission shall mean the Securities and Exchange Commission.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Exchange Offer Registration Period shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.
Exchange Offer Registration Statement shall mean a registration statement of the Issuers and
the Guarantors on an appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
Exchanging Dealer shall mean any Holder (which may include any Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its
own account as a result of market-making activities or other trading activities
2
(but not directly
from the Issuers and the Guarantors or any Affiliate of the Issuers and the Guarantors) for New
Securities.
Final Offering Memorandum shall have the meaning set forth in the Purchase Agreement.
Guarantors shall have the meaning set forth in the preamble hereto and shall also include
any Guarantors successor.
Holder shall have the meaning set forth in the preamble hereto.
Indenture shall mean the Indenture relating to the Securities and the New Securities, dated
as of September 25, 2002, among the Issuers and U.S. Bank National Association, as successor
trustee, as amended by the Ninth Supplemental Indenture, dated as of October 30, 2006, among the
Issuers, the Guarantors and the Trustee, as the same may be amended from time to time in accordance
with the terms thereof.
Initial Placement shall have the meaning set forth in the preamble hereto.
Initial Purchasers shall have the meaning set forth in the preamble hereto.
Losses shall have the meaning set forth in Section 7(d) hereof.
Majority Holders shall mean the Holders of a majority of the aggregate principal amount of
Securities registered under a Registration Statement.
Managing Underwriters shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.
New Securities shall mean debt securities of the Issuers identical in all material respects
to the Securities (except that the interest rate step-up provisions and the transfer restrictions
shall be eliminated) and to be issued under the Indenture.
Prospectus shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference therein.
Purchase Agreement shall have the meaning set forth in the preamble hereto.
Registered Exchange Offer shall mean the proposed offer of the Issuers and the Guarantors to
issue and deliver to the Holders of the Securities that are not prohibited by any law
or policy of the Commission from participating in such offer, in exchange for the Securities,
a like aggregate principal amount of the New Securities.
3
Registration Default shall have the meaning set forth in Section 4(a) hereof.
Registration Statement shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
Securities shall have the meaning set forth in the preamble hereto.
Shelf Registration shall mean a registration effected pursuant to Section 3 hereof.
Shelf Registration Period has the meaning set forth in Section 3(b) hereof.
Shelf Registration Statement shall mean a shelf registration statement of the Issuers and
the Guarantors pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.
Trustee shall mean the trustee with respect to the Securities and the New Securities under
the Indenture.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended from time to
time.
underwriter shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.
2.
Registered Exchange Offer
. (a) Except as set forth in Section 3, the Issuers and the
Guarantors shall prepare and shall use their reasonable best efforts to file with the Commission
the Exchange Offer Registration Statement with respect to the Registered Exchange Offer, not later
than 180 days following the date of the original issuance of the Securities (or if such 180th day
is not a Business Day, the next succeeding Business Day). The Issuers and the Guarantors shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 270 days of the date of the original issuance of the Securities and
to consummate the Registered Exchange Offer within 300 days of the date of the original issuance of
the Securities (if such 270th or 300th day is not a Business Day, the next succeeding Business
Day, as applicable).
(a) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers and the
Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the Issuers or the Guarantors, acquires the New
Securities in the ordinary course of such Holders business, has no
4
arrangements with any Person to
participate in the distribution of the New Securities and is not prohibited by any law or policy of
the Commission from participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of the several states
of the United States.
(b) In connection with the Registered Exchange Offer, the Issuers and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after
the date the notice thereof is mailed to the Holders (or, in each case, longer if required
by applicable law);
(iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required under
the Act to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a bank depositary for the Registered Exchange Offer with
an address in the Borough of Manhattan in New York City, which may be the Trustee or an
Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Issuers and the Guarantors are
conducting the Registered Exchange Offer in reliance on the position of the Commission in
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988) and
Morgan Stanley
and Co., Inc
. (pub. avail. June 5, 1991) and (B) including a representation that the
Issuers and the Guarantors have not entered into any arrangement or understanding with any
Person to distribute the New Securities to be received in the Registered Exchange Offer and
that, to the best of the Issuers and the Guarantors information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding with any Person to
participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(c) As soon as practicable after the close of the Registered Exchange Offer, the Issuers and
the Guarantors shall:
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(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer; and
(ii) issue and cause the Trustee promptly to authenticate a global certificate
representing New Securities exchanged for Securities and to deliver to each Holder of
Securities a principal amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(d) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in
Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991) and
Exxon
Capital Holdings Corporation
(pub. avail. May 13, 1988), as interpreted in the Commissions
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction and must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as applicable, of Regulation
S-K under the Act if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Issuers or the Guarantors or one of their
Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers and the Guarantors that, at the time of the consummation of
the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the ordinary course
of business;
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Securities or the New Securities within the meaning
of the Act; and
(iii) such Holder is not an Affiliate of the Issuers or the Guarantors.
3.
Shelf Registration
. (a) If (i) due to any change in law or applicable interpretations
thereof by the Commissions staff, the Issuers and the Guarantors determine upon advice of their
outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; (ii) for any other reason the Registered Exchange Offer is not consummated
within 300 days of the date hereof; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange Offer, or (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer, the Issuers
and the Guarantors shall effect a Shelf Registration Statement in accordance with subsection (b)
below.
(b) (i) The Issuers and the Guarantors shall as promptly as practicable (but in no event more
than 180 days after so required or requested pursuant to this Section 3), file with the Commission
and thereafter shall use their reasonable best efforts to cause to be declared effective under the
Act, within 270 days after so required or requested pursuant to this Section 3,
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a Shelf
Registration Statement relating to the offer and sale of the Securities or the New Securities, as
applicable, by the Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided
,
however
, that no Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to such Holder; and
provided
further
, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Issuers
and the Guarantors may, if permitted by current interpretations by the Commissions staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing the information
required by Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their obligations
under this subsection with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuers and the Guarantors shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as required by
the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for
a period of two years from the date the Shelf Registration Statement is declared effective
by the Commission or such shorter period that will terminate when all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement under the Act (in any such case, such period
being called the Shelf Registration Period). The Issuers and the Guarantors shall be
deemed not to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if either Issuer or any Guarantor
voluntarily takes any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by such Issuer or such Guarantor in
good faith and for valid business reasons (not including avoidance of the Issuers or the
Guarantors obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuers and the Guarantors promptly thereafter comply with the requirements of
Section 5(k) hereof, if applicable.
(iii) The Issuers and the Guarantors shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act and the rules and regulations
of the Commission; and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required 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.
4.
Additional Interest.
(a) In the event that (i) the Issuers and the Guarantors have not filed the Exchange Offer
Registration Statement or the Shelf Registration Statement with the Commission on or before the
date on which such Registration Statement is required to be so filed pursuant to
7
Section 2(a) and
3(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration
Statement has not been declared effective by the Commission under the Act on or before the date on
which such Registration Statement is required to be declared effective under the Act pursuant to
Section 2(a) or 3(b), respectively, or (iii) the Exchange Offer has not been consummated within 300
days after the date of issuance of the Securities, or (iv) the Exchange Offer Registration
Statement or Shelf Registration Statement required by Section 2(a) or 3(b) hereof is filed and
declared effective by the Commission under the Act but shall thereafter cease to be effective
(except as specifically permitted herein) without being succeeded immediately by an additional
Registration Statement filed and declared effective by the Commission under the Act (each such
event referred to in clauses (i) through (iv) is referred to herein as a Registration Default),
then the interest rate on the Securities will be increased, for the period from the occurrence of
the Registration Default until such time as all Registration Defaults are cured (at which time the
interest rate will be reduced to its initial rate) by 0.25% per annum during the first 90-day
period following the occurrence and during the continuation of the Registration Default, and by
0.25% per annum for each subsequent 90-day period during which such Registration Default continues.
The interest rate will not at any time be increased by greater than 0.50% per annum.
(b) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Issuers and the Guarantors acknowledge that any failure by the Issuers or the Guarantors to comply
with their obligations under Section 2(a) or 3(b) hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Issuers and the Guarantors obligations under Section 2(a) or Section
3(b) hereof.
5.
Additional Registration Procedures
. In connection with any Shelf Registration Statement
and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions
shall apply.
(a) The Issuers and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior to the filing thereof with
the Commission, a copy of any Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein (including all documents incorporated by reference
therein after the initial filing) and shall use their reasonable
best efforts to reflect in each such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing page of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange Offer;
8
(iii) if requested by an Initial Purchaser, include the information required by Item
507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Shelf
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders
that propose to sell Securities pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Issuers and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto comply in all material respects with
the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto do not, when they become
effective, 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.
(c) The Issuers and the Guarantors shall advise you, the Holders of Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Issuers and the Guarantors a telephone or facsimile
number and address for notices, and, if requested in writing by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the
Issuers and the Guarantors shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto have been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuers and the Guarantors of any notification with respect
to the suspension of the qualification of the Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading
.
9
(d) The Issuers and the Guarantors shall use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration Statement or the
qualification of the Securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Issuers and the Guarantors shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Issuers and the Guarantors shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers and the Guarantors consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in connection with the offering and
sale of the Securities covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Issuers and the Guarantors shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein, and, if
the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated
by reference therein).
(h) The Issuers and the Guarantors shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus during the effectiveness
of the Exchange Offer Registration Statement, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any amendment or supplement thereto as
any such Person may reasonably request. The Issuers and the Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer
and any such other Person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any
Registration Statement, the Issuers and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the laws of such jurisdiction
as any Holder shall reasonably request and will maintain such qualification in effect so long as
required;
provided
that in no event shall either Issuer or any Guarantor be obligated to
qualify to do business in any jurisdiction where it is not then so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
10
(j) If any of the Securities or the New Securities are not issued in global form, then the
Issuers and the Guarantors shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or Securities to be issued or
sold pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) or (v) above, the
Issuers and the Guarantors shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers of the securities included
therein, the Prospectus will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf Registration
Statement provided for in Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented Prospectus pursuant to this
Section.
(l) Not later than the effective date of any Registration Statement, the Issuers and the
Guarantors shall provide a CUSIP number for the Securities or the New Securities, as the case may
be, registered under such Registration Statement and provide the Trustee with certificates for such
Securities or New Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Issuers and the Guarantors shall comply with all applicable rules and regulations of
the Commission and shall make generally available to the Issuers security holders as soon as
practicable after the effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Issuers and the Guarantors shall cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Issuers and the Guarantors may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Issuers and the Guarantors such information
regarding the Holder and the distribution of such Securities as the Issuers and
the Guarantors may from time to time reasonably require for inclusion in such Registration
Statement. The Issuers and the Guarantors may exclude from such Shelf Registration Statement the
Securities of any Holder that unreasonably fails to furnish such information within a reasonable
time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers and the Guarantors shall
enter into such agreements and take all other appropriate actions (including, if requested, an
underwriting agreement in customary form) in order to expedite or facilitate the registration or
the disposition of the Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and procedures
11
no less favorable
than those set forth in Section 7 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Issuers and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of Securities to be
registered thereunder, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by the Holders
or any such underwriter all relevant financial and other records, pertinent partnership,
corporate or limited liability company documents and properties of the Issuers and the
Guarantors and their respective subsidiaries;
(ii) cause the Issuers and the Guarantors respective officers, directors and
employees to supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided
,
however
, that any information that is designated in writing by the Issuers or the
Guarantors, in good faith, as confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and the Guarantors and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters,
if any, covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) obtain cold comfort letters and updates thereof from the independent certified
public accountants of the Issuers and the Guarantors (and, if necessary, any other
independent certified public accountants of any subsidiary of the Issuers and the Guarantors
or of any business acquired by the Issuers and the Guarantors for which financial statements
and financial data are, or are required to be, included in the Registration Statement),
addressed to each selling Holder of Securities registered thereunder and the underwriters,
if any, in customary form and covering matters of the type customarily covered in cold
comfort letters in connection with primary underwritten offerings; and
12
(vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuers or the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to the extent required
thereunder.
(r) [omitted]
(s) [omitted]
(t) [omitted]
(u) In the event that any Broker-Dealer shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or assist in the distribution (within the
meaning of the Conduct Rules and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist such Broker-Dealer in
complying with the requirements of such Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a qualified independent
underwriter (as defined in such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities;
(ii) indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 7 hereof; and
(iii) providing such information to such Broker-Dealer as may be required in order for
such Broker-Dealer to comply with the requirements of such Rules.
(iv) The Issuers and the Guarantors shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
6.
Registration Expenses
. The Issuers and the Guarantors bear all expenses incurred in
connection with the performance of their obligations under Sections 2, 3 and 5 hereof and, in the
event of any Shelf Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act as counsel for the
Holders in connection therewith, and, in the case of any Exchange Offer
13
Registration Statement,
will reimburse the Initial Purchasers for the reasonable fees and disbursements of counsel acting
in connection therewith.
7.
Indemnification and Contribution
. (a) The Issuers and each Guarantor agree to
indemnify and hold harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and agree
to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action;
provided
,
however
, that (i) the Issuers and the Guarantors
will not be liable in any case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information furnished
to the Issuers or the Guarantors by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Issuers or the
Guarantors may otherwise have.
The Issuers and each Guarantor also agree to indemnify or contribute as provided in Section
7(d) to Losses of any underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of the indemnification
of the Initial Purchasers and the selling Holders provided in this Section 7(a). The Issuers and
each Guarantor shall, if requested by any Holder, enter into an underwriting agreement reflecting
such agreement, as provided in Section 5(p) hereof.
(b) Each Holder of securities covered by a Registration Statement (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally and not jointly agrees to indemnify and hold harmless the Issuers, the
Guarantors, the directors of the Issuers and the Guarantors, the officers of the Issuers and the
Guarantors who sign such Registration Statement and each Person who controls the Issuers or the
Guarantors within the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers and the Guarantors to each such Holder, but only with
reference to written information relating to such Holder furnished to the Issuers and the
Guarantors by or on behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
14
(c) Promptly after receipt by an indemnified party under this Section 7 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying partys choice at the indemnifying partys expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party for any reason,
then each applicable indemnifying party shall have a joint and several obligation to
contribute to the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same) (collectively
Losses) to which such indemnified party may be subject in such proportion as is appropriate to
reflect the relative benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the Registration Statement
which resulted in such Losses;
provided
,
however
, that in no case shall any Initial
Purchaser or any subsequent Holder of any Security or New Security be responsible, in the
aggregate, for any amount in excess of the purchase discount or
commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was exchangeable into
such New Security, as set forth on the cover page of the Final Offering Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount or commission
15
applicable to the securities purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand,
in connection with the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers or the Guarantors shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial Placement (before
deducting expenses) as set forth on the cover page of the Final Offering Memorandum and (y) the
total amount of additional interest which the Issuers and the Guarantors were not required to pay
as a result of registering the securities covered by the Registration Statement which resulted in
such Losses. Benefits received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final Offering Memorandum,
and benefits received by any other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to, among other things,
whether any alleged untrue statement or omission relates to information provided by the
indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of
the parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the Holders were treated
as one entity for such purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions of this paragraph
(d), no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each Person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each Person who controls
the Issuers and the Guarantors within the meaning of either the Act or the Exchange Act, each
officer of the Issuers and the Guarantors who shall have signed the Registration Statement and each
director of the Issuers and the Guarantors shall have
the same rights to contribution as the Issuers and the Guarantors, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers and the Guarantors or any of the
officers, directors or controlling Persons referred to in this Section hereof, and will survive the
sale by a Holder of securities covered by a Registration Statement.
16
8.
Underwritten Registrations
. (a) If any of the Securities or New Securities, as the
case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders and shall be
reasonably satisfactory to the Partnership.
(b) No Person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such Person (i) agrees to sell such Persons Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9.
No Inconsistent Agreements
. The Issuers and the Guarantors have not, as of the date
hereof, entered into, nor shall they, on or after the date hereof, enter into, any agreement with
respect to their securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
10.
Amendments and Waivers
. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuers and the Guarantors have
obtained the written consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities);
provided
that, with
respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Issuers and the Guarantors shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such Registration
Statement.
11.
Notices
. All notices and other communications provided for or permitted hereunder shall be made in
writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address given by such Holder to the Issuers in
accordance with the provisions of this Section, which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth in the Purchase Agreement;
17
(c) if to the Issuers, initially at the address set forth in the Purchase Agreement; and
(d) if to the Guarantors, initially at 333 Clay Street, Suite 1600, Houston, Texas 77002.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchasers, the Issuers or the Guarantors by notice to the other parties may
designate additional or different addresses for subsequent notices or communications.
12.
Successors and Assigns
. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including, without the need for an express
assignment or any consent by the Issuers or the Guarantors thereto, subsequent Holders of
Securities and the New Securities. The Issuers and the Guarantors hereby agree to extend the
benefits of this Agreement to any Holder of Securities and the New Securities, and any such Holder
may specifically enforce the provisions of this Agreement as if an original party hereto.
13.
Counterparts
. This agreement may be in signed counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same agreement.
14.
Purchases and Sales of Securities
. The Issuers and the Guarantors shall not, and
shall use their best efforts to cause their affiliates (as defined in Rule 405 under the Act) not
to, purchase and then resell or otherwise transfer any Securities for two (2) years, or if a Shelf
Registration Statement shall become effective during such two (2) year period, for the period of
such effectiveness.
15.
Third Party Beneficiaries
. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Issuers and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to protect its rights
or the rights of other Holders hereunder.
16.
Headings
. The headings used herein are for convenience only and shall not affect the
construction hereof.
17.
Applicable Law
. 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 in the State of
New York.
18.
Severability
. In the event that any one of more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected
18
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
19.
Securities Held by the Issuers, the Guarantors, etc.
Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New Securities is
required hereunder, Securities or New Securities, as applicable, held by the Issuers, the
Guarantors or their Affiliates (other than subsequent Holders of Securities or New Securities if
such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
19
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a building agreement among the Issuers, the Guarantors and the several Initial
Purchasers.
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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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PLAINS AAP, L.P.
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its General Partner
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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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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By:
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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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20
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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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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By:
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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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PMC (NOVA SCOTIA) COMPANY
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By:
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/s/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President
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21
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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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President
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BASIN HOLDINGS GP LLC
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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BASIN PIPELINE HOLDINGS, L.P.
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By:
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BASIN HOLDINGS GP LLC
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its General Partner
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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22
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RANCHO HOLDINGS GP LLC
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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RANCHO PIPELINE HOLDINGS, L.P.
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By:
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RANCHO HOLDINGS GP LLC
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its General Partner
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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PLAINS LPG SERVICES 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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23
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and
Chief Financial Officer
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24
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PLAINS MARKETING INTERNATIONAL 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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PLAINS MARKETING INTERNATIONAL, L.P.
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By:
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PLAINS MARKETING INTERNATIONAL 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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25
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PLAINS LPG MARKETING, 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/ Phil Kramer
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Name:
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Phil Kramer
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Title:
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Executive Vice President and Chief
Financial Officer
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26
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
BNP PARIBAS SECURITIES CORP.
SUNTRUST CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
DNB NOR MARKETS, INC.
FORTIS SECURITIES LLC
HSBC SECURITIES (USA) INC.
ING FINANCIAL MARKETS LLC
MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC
PIPER JAFFRAY & CO.
RBC CAPITAL MARKETS CORPORATION
SCOTIA CAPITAL (USA) INC.
DAIWA SECURITIES AMERICA INC.
SG AMERICAS SECURITIES, LLC
WEDBUSH MORGAN SECURITIES INC.
WELLS FARGO SECURITIES, LLC
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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: Director
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27
SCHEDULE 1
Plains Marketing, L.P.
Plains Pipeline, L.P.
Plains Marketing GP Inc.
Plains Marketing Canada LLC
PMC (Nova Scotia) Company
Plains Marketing Canada, L.P.
Basin Holdings GP LLC
Basin Pipeline Holdings, L.P.
Rancho Holdings GP LLC
Rancho Pipeline Holdings, L.P.
Plains LPG Services GP LLC
Plains LPG Services, L.P.
Lone Star Trucking, LLC
Plains Marketing International GP LLC
Plains Marketing International, L.P.
Plains LPG Marketing, L.P.
28
SCHEDULE 2
Citigroup Global Markets Inc.
UBS Securities LLC
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
SunTrust Capital Markets, Inc.
Comerica Securities, Inc.
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
Fortis Securities LLC
HSBC Securities (USA) Inc.
ING Financial Markets LLC
Mitsubishi UFJ Securities International plc
Piper Jaffray & Co.
RBC Capital Markets Corporation
Scotia Capital (USA) Inc.
Daiwa Securities America Inc.
SG Americas Securities, LLC
Wedbush Morgan Securities Inc.
Wells Fargo Securities, LLC
29
ANNEX A
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a Broker-Dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Issuers and the Guarantors have agreed that, starting
on the Expiration Date (as defined herein) and ending on the close of business one year after the
Expiration Date, they will make this Prospectus available to any Broker-Dealer for use in
connection with any such resale. See Plan of Distribution.
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. See Plan of Distribution.
2
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or other trading
activities. The Issuers and the Guarantors have agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, they will make this Prospectus,
as amended or supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until
, 200___[90 days] after commencement of the offering, all
dealers effecting transactions in the New Securities may be required to deliver a prospectus.
The Issuers and the Guarantors will not receive any proceeds from any sale of New Securities
by Brokers-Dealers. New Securities received by Broker-Dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the New
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such Broker-Dealer and/or the purchasers of any
such New Securities. Any Broker-Dealer that resells New Securities that were received by it for
its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such New Securities may be deemed to be an underwriter within the meaning of the
Act and any profit of any such resale of New Securities and any commissions or concessions received
by any such Persons may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an underwriter within the meaning of the
Act.
For a period of one year after the Expiration Date, the Issuers and the Guarantors will
promptly send additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any Broker-Dealer that requests such documents in the Letter of Transmittal. The
Issuers and the Guarantors have agreed to pay all expenses incident to the Exchange Offer
(including the reasonable expenses of one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any Broker-Dealers) against certain liabilities, including liabilities under
the Act.
If applicable, add information required by Regulation S-K Items 507 and/or 508.
3
ANNEX D
Rider A
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CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
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Name:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
Person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter
within the meaning of the Act.
4
Execution
Version
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
AMONG
PLAINS ALL AMERICAN PIPELINE, L.P.,
PAA FINANCE CORP.,
THE GUARANTORS
AND
THE INITIAL PURCHASERS
Dated as of October 30, 2006
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
6.650% Senior Notes due 2037
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
October 30, 2006
Citigroup Global Markets Inc.
UBS Securities LLC
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
SunTrust Capital Markets, Inc.
Comerica Securities, Inc.
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
Fortis Securities LLC
HSBC Securities (USA) Inc.
ING Financial Markets LLC
Mitsubishi UFJ Securities International plc
Piper Jaffray & Co.
RBC Capital Markets Corporation
Scotia Capital (USA) Inc.
Daiwa Securities America Inc.
SG Americas Securities, LLC
Wedbush Morgan Securities Inc.
Wells Fargo Securities, LLC
c/o Citigroup Global Markets Inc.
388 Greenwich St., 34th Floor
New York, New York 10013
Ladies and Gentlemen:
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) and the Guarantors listed on Schedule 1 hereto (the Guarantors), propose to issue and
sell to the initial purchasers listed on Schedule 2 hereto (the Initial Purchasers), upon the
terms set forth in a purchase agreement dated October 23, 2006 (the Purchase Agreement),
$600,000,000 principal amount of 6.650% Senior Notes due 2037 (the Securities) and $400,000,000
principal amount of 6.125% Senior Notes due 2017 (the 2017
Notes) relating to the initial
placement of the Securities and the 2017 Notes (the Initial Placement). To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Issuers and the Guarantors agree with you for your benefit and the benefit of the
other holders from time to time of the Securities (including the Initial Purchasers) (each a
Holder and, together, the Holders), as follows:
1.
Definitions
. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
2017 Notes shall have the meaning set forth in the preamble hereto.
Act shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
Affiliate of any specified Person shall mean any other Person that, directly or indirectly,
is in control of, is controlled by, or is under common control with, such specified Person. For
purposes of this definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person whether by contract or
otherwise; and the terms controlling and controlled shall have meanings correlative to the
foregoing.
Broker-Dealer shall mean any broker or dealer registered as such under the Exchange Act.
Business Day shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City.
Commission shall mean the Securities and Exchange Commission.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Exchange Offer Registration Period shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in
effect suspending the effectiveness of the Exchange Offer Registration Statement.
Exchange Offer Registration Statement shall mean a registration statement of the Issuers and
the Guarantors on an appropriate form under the Act with respect to the Registered Exchange Offer,
all amendments and supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
Exchanging Dealer shall mean any Holder (which may include any Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its
own account as a result of market-making activities or other trading activities
2
(but not directly
from the Issuers and the Guarantors or any Affiliate of the Issuers and the Guarantors) for New
Securities.
Final Offering Memorandum shall have the meaning set forth in the Purchase Agreement.
Guarantors shall have the meaning set forth in the preamble hereto and shall also include
any Guarantors successor.
Holder shall have the meaning set forth in the preamble hereto.
Indenture shall mean the Indenture relating to the Securities and the New Securities, dated
as of September 25, 2002, among the Issuers and U.S. Bank National Association, as successor
trustee, as amended by the Tenth Supplemental Indenture, dated as of October 30, 2006, among the
Issuers, the Guarantors and the Trustee, as the same may be amended from time to time in accordance
with the terms thereof.
Initial Placement shall have the meaning set forth in the preamble hereto.
Initial Purchasers shall have the meaning set forth in the preamble hereto.
Losses shall have the meaning set forth in Section 7(d) hereof.
Majority Holders shall mean the Holders of a majority of the aggregate principal amount of
Securities registered under a Registration Statement.
Managing Underwriters shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.
New Securities shall mean debt securities of the Issuers identical in all material respects
to the Securities (except that the interest rate step-up provisions and the transfer restrictions
shall be eliminated) and to be issued under the Indenture.
Prospectus shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Securities or the New Securities covered by such Registration Statement, and all
amendments and supplements thereto and all material incorporated by reference therein.
Purchase Agreement shall have the meaning set forth in the preamble hereto.
Registered Exchange Offer shall mean the proposed offer of the Issuers and the Guarantors to
issue and deliver to the Holders of the Securities that are not prohibited by any law or policy of
the Commission from participating in such offer, in exchange for the Securities, a like aggregate
principal amount of the New Securities.
3
Registration Default shall have the meaning set forth in Section 4(a) hereof.
Registration Statement shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the
provisions of this Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
Securities shall have the meaning set forth in the preamble hereto.
Shelf Registration shall mean a registration effected pursuant to Section 3 hereof.
Shelf Registration Period has the meaning set forth in Section 3(b) hereof.
Shelf Registration Statement shall mean a shelf registration statement of the Issuers and
the Guarantors pursuant to the provisions of Section 3 hereof which covers some or all of the
Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the Act,
or any similar rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by reference therein.
Trustee shall mean the trustee with respect to the Securities and the New Securities under
the Indenture.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended from time to
time.
underwriter shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.
2.
Registered Exchange Offer
. (a) Except as set forth in Section 3, the Issuers and the
Guarantors shall prepare and shall use their reasonable best efforts to file with the Commission
the Exchange Offer Registration Statement with respect to the Registered Exchange Offer, not later
than 180 days following the date of the original issuance of the Securities (or if such 180th day
is not a Business Day, the next succeeding Business Day). The Issuers and the Guarantors shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 270 days of the date of the original issuance of the Securities and
to consummate the Registered Exchange Offer within 300 days of the date of the original issuance of
the Securities (if such 270th or 300th day is not a Business Day, the next succeeding Business
Day, as applicable).
(a) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers and the
Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities
(assuming that such Holder is not an Affiliate of the Issuers or the Guarantors, acquires the New
Securities in the ordinary course of such Holders business, has no
4
arrangements with any Person to
participate in the distribution of the New Securities and is not prohibited by any law or policy of
the Commission from participating in the Registered Exchange Offer) to trade such New Securities
from and after their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of the several states
of the United States.
(b) In connection with the Registered Exchange Offer, the Issuers and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related
documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after
the date the notice thereof is mailed to the Holders (or, in each case, longer if required
by applicable law);
(iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required under
the Act to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a bank depositary for the Registered Exchange Offer with
an address in the Borough of Manhattan in New York City, which may be the Trustee or an
Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Issuers and the Guarantors are
conducting the Registered Exchange Offer in reliance on the position of the Commission in
Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988) and
Morgan Stanley
and Co., Inc
. (pub. avail. June 5, 1991) and (B) including a representation that the
Issuers and the Guarantors have not entered into any arrangement or understanding with any
Person to distribute the New Securities to be received in the Registered Exchange Offer and
that, to the best of the Issuers and the Guarantors information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding with any Person to
participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(c) As soon as practicable after the close of the Registered Exchange Offer, the Issuers and
the Guarantors shall:
5
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to
the Registered Exchange Offer; and
(ii) issue and cause the Trustee promptly to authenticate a global certificate
representing New Securities exchanged for Securities and to deliver to each Holder of
Securities a principal amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(d) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in
Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991) and
Exxon
Capital Holdings Corporation
(pub. avail. May 13, 1988), as interpreted in the Commissions
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction and must be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as applicable, of Regulation
S-K under the Act if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Issuers or the Guarantors or one of their
Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be
required to represent to the Issuers and the Guarantors that, at the time of the consummation of
the Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the ordinary course
of business;
(ii) such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Securities or the New Securities within the meaning
of the Act; and
(iii) such Holder is not an Affiliate of the Issuers or the Guarantors.
3.
Shelf Registration
. (a) If (i) due to any change in law or applicable interpretations
thereof by the Commissions staff, the Issuers and the Guarantors determine upon advice of their
outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated
by Section 2 hereof; (ii) for any other reason the Registered Exchange Offer is not consummated
within 300 days of the date hereof; (iii) any Initial Purchaser so requests with respect to
Securities that are not eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange Offer, or (iv) any
Holder (other than an Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer, the Issuers and the Guarantors shall effect a Shelf Registration Statement in accordance
with subsection (b) below.
(b) (i) The Issuers and the Guarantors shall as promptly as practicable (but in no event more
than 180 days after so required or requested pursuant to this Section 3), file with the Commission
and thereafter shall use their reasonable best efforts to cause to be declared effective under the
Act, within 270 days after so required or requested pursuant to this Section 3,
6
a Shelf
Registration Statement relating to the offer and sale of the Securities or the New Securities, as
applicable, by the Holders thereof from time to time in accordance with the methods of distribution
elected by such Holders and set forth in such Shelf Registration Statement;
provided
,
however
, that no Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to such Holder; and
provided
further
, that with respect to New Securities received by an Initial
Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Issuers
and the Guarantors may, if permitted by current interpretations by the Commissions staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing the information
required by Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their obligations
under this subsection with respect thereto, and any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuers and the Guarantors shall use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended as required by
the Act, in order to permit the Prospectus forming part thereof to be usable by Holders for
a period of two years from the date the Shelf Registration Statement is declared effective
by the Commission or such shorter period that will terminate when all the Securities or New
Securities, as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement under the Act (in any such case, such period
being called the Shelf Registration Period). The Issuers and the Guarantors shall be
deemed not to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if either Issuer or any Guarantor
voluntarily takes any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless (A) such action is
required by applicable law; or (B) such action is taken by such Issuer or such Guarantor in
good faith and for valid business reasons (not including avoidance of the Issuers or the
Guarantors obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuers and the Guarantors promptly thereafter comply with the requirements of
Section 5(k) hereof, if applicable.
(iii) The Issuers and the Guarantors shall cause the Shelf Registration Statement and
the related Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act and the rules and regulations
of the Commission; and (B) not to contain any untrue statement of a material fact or omit to
state a material fact required 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.
4.
Additional Interest.
(a) In the event that (i) the Issuers and the Guarantors have not filed the Exchange Offer
Registration Statement or the Shelf Registration Statement with the Commission on or before the
date on which such Registration Statement is required to be so filed pursuant to
7
Section 2(a) and
3(b), respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration
Statement has not been declared effective by the Commission under the Act on or before the date on
which such Registration Statement is required to be declared effective under the Act pursuant to
Section 2(a) or 3(b), respectively, or (iii) the Exchange Offer has not been consummated within 300
days after the date of issuance of the Securities, or (iv) the Exchange Offer Registration
Statement or Shelf Registration Statement required by Section 2(a) or 3(b) hereof is filed and
declared effective by the Commission under the Act but shall thereafter cease to be effective
(except as specifically permitted herein) without being succeeded immediately by an additional
Registration Statement filed and declared effective by the Commission under the Act (each such
event referred to in clauses (i) through (iv) is referred to herein as a Registration Default),
then the interest rate on the Securities will be increased, for the period from the occurrence of
the Registration Default until such time as all Registration Defaults are cured (at which time the
interest rate will be reduced to its initial rate) by 0.25% per annum during the first 90-day
period following the occurrence and during the continuation of the Registration Default, and by
0.25% per annum for each subsequent 90-day period during which such Registration Default continues.
The interest rate will not at any time be increased by greater than 0.50% per annum.
(b) Without limiting the remedies available to the Initial Purchasers and the Holders, the
Issuers and the Guarantors acknowledge that any failure by the Issuers or the Guarantors to comply
with their obligations under Section 2(a) or 3(b) hereof may result in material irreparable injury
to the Initial Purchasers or the Holders for which there is no adequate remedy at law, that it will
not be possible to measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Issuers and the Guarantors obligations under Section 2(a) or Section
3(b) hereof.
5.
Additional Registration Procedures
. In connection with any Shelf Registration Statement
and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions
shall apply.
(a) The Issuers and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior to the filing thereof with
the Commission, a copy of any Exchange Offer Registration Statement and any Shelf
Registration Statement, and each amendment thereof and each amendment or supplement, if any,
to the Prospectus included therein (including all documents incorporated by reference
therein after the initial filing) and shall use their reasonable best efforts to reflect in
each such document, when so filed with the Commission, such comments as you reasonably
propose;
(ii) include the information set forth in Annex A hereto on the facing page of the
Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange
Offer Registration Statement in a section setting forth details of the Exchange Offer, in
Annex C hereto in the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Registered Exchange Offer;
8
(iii) if requested by an Initial Purchaser, include the information required by Item
507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Shelf
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders
that propose to sell Securities pursuant to the Shelf Registration Statement as selling
security holders.
(b) The Issuers and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus forming
part thereof and any amendment or supplement thereto comply in all material respects with
the Act and the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto do not, when they become
effective, 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.
(c) The Issuers and the Guarantors shall advise you, the Holders of Securities covered by any
Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Issuers and the Guarantors a telephone or facsimile
number and address for notices, and, if requested in writing by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the
Issuers and the Guarantors shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto have been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for any amendment or supplement to the
Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuers and the Guarantors of any notification with respect
to the suspension of the qualification of the Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration
Statement or the Prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading
.
9
(d) The Issuers and the Guarantors shall use their reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration Statement or the
qualification of the Securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Issuers and the Guarantors shall furnish to each Holder of Securities covered by any
Shelf Registration Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Issuers and the Guarantors shall, during the Shelf Registration Period, deliver to
each Holder of Securities covered by any Shelf Registration Statement, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers and the Guarantors consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities in connection with the offering and
sale of the Securities covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Issuers and the Guarantors shall furnish to each Exchanging Dealer which so requests,
without charge, at least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by reference therein, and, if
the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated
by reference therein).
(h) The Issuers and the Guarantors shall promptly deliver to each Initial Purchaser, each
Exchanging Dealer and each other Person required to deliver a Prospectus during the effectiveness
of the Exchange Offer Registration Statement, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any amendment or supplement thereto as
any such Person may reasonably request. The Issuers and the Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer
and any such other Person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any
Registration Statement, the Issuers and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the laws of such jurisdiction
as any Holder shall reasonably request and will maintain such qualification in effect so long as
required;
provided
that in no event shall either Issuer or any Guarantor be obligated to
qualify to do business in any jurisdiction where it is not then so qualified or to take any action
that would subject it to service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
10
(j) If any of the Securities or the New Securities are not issued in global form, then the
Issuers and the Guarantors shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or Securities to be issued or
sold pursuant to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) or (v) above, the
Issuers and the Guarantors shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchasers of the securities included
therein, the Prospectus will not include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf Registration
Statement provided for in Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the Securities and any known
Exchanging Dealer shall have received such amended or supplemented Prospectus pursuant to this
Section.
(l) Not later than the effective date of any Registration Statement, the Issuers and the
Guarantors shall provide a CUSIP number for the Securities or the New Securities, as the case may
be, registered under such Registration Statement and provide the Trustee with certificates for such
Securities or New Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Issuers and the Guarantors shall comply with all applicable rules and regulations of
the Commission and shall make generally available to the Issuers security holders as soon as
practicable after the effective date of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Issuers and the Guarantors shall cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Issuers and the Guarantors may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Issuers and the Guarantors such information
regarding the Holder and the distribution of such Securities as the Issuers and the Guarantors may
from time to time reasonably require for inclusion in such Registration Statement. The Issuers and
the Guarantors may exclude from such Shelf Registration Statement the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement, the Issuers and the Guarantors shall
enter into such agreements and take all other appropriate actions (including, if requested, an
underwriting agreement in customary form) in order to expedite or facilitate the registration or
the disposition of the Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and procedures
11
no less favorable
than those set forth in Section 7 (or such other provisions and procedures acceptable to the
Majority Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Issuers and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of Securities to be
registered thereunder, any underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent retained by the Holders
or any such underwriter all relevant financial and other records, pertinent partnership,
corporate or limited liability company documents and properties of the Issuers and the
Guarantors and their respective subsidiaries;
(ii) cause the Issuers and the Guarantors respective officers, directors and
employees to supply all relevant information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations;
provided
,
however
, that any information that is designated in writing by the Issuers or the
Guarantors, in good faith, as confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding or required by law, or
such information becomes available to the public generally or through a third party without
an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and the Guarantors and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters,
if any, covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by such Holders
and underwriters;
(v) obtain cold comfort letters and updates thereof from the independent certified
public accountants of the Issuers and the Guarantors (and, if necessary, any other
independent certified public accountants of any subsidiary of the Issuers and the Guarantors
or of any business acquired by the Issuers and the Guarantors for which financial statements
and financial data are, or are required to be, included in the Registration Statement),
addressed to each selling Holder of Securities registered thereunder and the underwriters,
if any, in customary form and covering matters of the type customarily covered in cold
comfort letters in connection with primary underwritten offerings; and
12
(vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuers or the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to the extent required
thereunder.
(r) [omitted]
(s) [omitted]
(t) [omitted]
(u) In the event that any Broker-Dealer shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or assist in the distribution (within the
meaning of the Conduct Rules and the By-Laws of the National Association of Securities Dealers,
Inc.) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales
agent or a broker or dealer in respect thereof, or otherwise, assist such Broker-Dealer in
complying with the requirements of such Rules and By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a qualified independent
underwriter (as defined in such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities;
(ii) indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 7 hereof; and
(iii) providing such information to such Broker-Dealer as may be required in order for
such Broker-Dealer to comply with the requirements of such Rules.
(iv) The Issuers and the Guarantors shall use their reasonable best efforts to take all
other steps necessary to effect the registration of the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
6.
Registration Expenses
. The Issuers and the Guarantors bear all expenses incurred in
connection with the performance of their obligations under Sections 2, 3 and 5 hereof and, in the
event of any Shelf Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act as counsel for the
Holders in connection therewith, and, in the case of any Exchange Offer
13
Registration Statement,
will reimburse the Initial Purchasers for the reasonable fees and disbursements of counsel acting
in connection therewith.
7.
Indemnification and Contribution
. (a) The Issuers and each Guarantor agree to
indemnify and hold harmless each Holder of Securities or New Securities, as the case may be,
covered by any Registration Statement (including each Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, and agree
to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action;
provided
,
however
, that (i) the Issuers and the Guarantors
will not be liable in any case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written information furnished
to the Issuers or the Guarantors by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the Issuers or the
Guarantors may otherwise have.
The Issuers and each Guarantor also agree to indemnify or contribute as provided in Section
7(d) to Losses of any underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of the indemnification
of the Initial Purchasers and the selling Holders provided in this Section 7(a). The Issuers and
each Guarantor shall, if requested by any Holder, enter into an underwriting agreement reflecting
such agreement, as provided in Section 5(p) hereof.
(b) Each Holder of securities covered by a Registration Statement (including each Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in Section 5(h) hereof, each
Exchanging Dealer) severally and not jointly agrees to indemnify and hold harmless the Issuers, the
Guarantors, the directors of the Issuers and the Guarantors, the officers of the Issuers and the
Guarantors who sign such Registration Statement and each Person who controls the Issuers or the
Guarantors within the meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers and the Guarantors to each such Holder, but only with
reference to written information relating to such Holder furnished to the Issuers and the
Guarantors by or on behalf of such Holder specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in addition to any liability which
any such Holder may otherwise have.
14
(c) Promptly after receipt by an indemnified party under this Section 7 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section, notify the indemnifying party in writing of
the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve
it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise
learn of such action and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying partys choice at the indemnifying partys expense to represent the indemnified party
in any action for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying partys election to
appoint counsel to represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would present such counsel with
a conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the institution of such
action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, 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.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively Losses) to which such
indemnified party may be subject in such proportion as is appropriate to reflect the relative
benefits received by such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Initial Placement and the Registration Statement which resulted in such
Losses;
provided
,
however
, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such Security, or in the case of a
New Security, applicable to the Security that was exchangeable into such New Security, as set forth
on the cover page of the Final Offering Memorandum, nor shall any underwriter be responsible for
any amount in excess of the underwriting discount or commission
15
applicable to the securities
purchased by such underwriter under the Registration Statement which resulted in such Losses. If
the allocation provided by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of such indemnifying party,
on the one hand, and such indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Issuers or the Guarantors shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses) as set forth on the
cover page of the Final Offering Memorandum and (y) the total amount of additional interest which
the Issuers and the Guarantors were not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits received by the
Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions as
set forth on the cover page of the Final Offering Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities or New Securities, as
applicable, registered under the Act. Benefits received by any underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such Losses. Relative
fault shall be determined by reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 7, each Person who controls a Holder within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Issuers and the Guarantors
within the meaning of either the Act or the Exchange Act, each officer of the Issuers and the
Guarantors who shall have signed the Registration Statement and each director of the Issuers and
the Guarantors shall have the same rights to contribution as the Issuers and the Guarantors,
subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 7 will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers and the Guarantors or any of the
officers, directors or controlling Persons referred to in this Section hereof, and will survive the
sale by a Holder of securities covered by a Registration Statement.
16
8.
Underwritten Registrations
. (a) If any of the Securities or New Securities, as the
case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters shall be selected by the Majority Holders and shall be
reasonably satisfactory to the Partnership.
(b) No Person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such Person (i) agrees to sell such Persons Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9.
No Inconsistent Agreements
. The Issuers and the Guarantors have not, as of the date
hereof, entered into, nor shall they, on or after the date hereof, enter into, any agreement with
respect to their securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
10.
Amendments and Waivers
. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Issuers and the Guarantors have
obtained the written consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities);
provided
that, with
respect to any matter that directly or indirectly affects the rights of any Initial Purchaser
hereunder, the Issuers and the Guarantors shall obtain the written consent of each such Initial
Purchaser against which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of Securities or New
Securities, as the case may be, being sold rather than registered under such Registration
Statement.
11.
Notices
. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such Holder to the Issuers in
accordance with the provisions of this Section, which address initially is, with respect to each
Holder, the address of such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth in the Purchase Agreement;
17
(c) if to the Issuers, initially at the address set forth in the Purchase Agreement; and
(d) if to the Guarantors, initially at 333 Clay Street, Suite 1600, Houston, Texas 77002.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchasers, the Issuers or the Guarantors by notice to the other parties may
designate additional or different addresses for subsequent notices or communications.
12.
Successors and Assigns
. This Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties, including, without the need for an express
assignment or any consent by the Issuers or the Guarantors thereto, subsequent Holders of
Securities and the New Securities. The Issuers and the Guarantors hereby agree to extend the
benefits of this Agreement to any Holder of Securities and the New Securities, and any such Holder
may specifically enforce the provisions of this Agreement as if an original party hereto.
13.
Counterparts
. This agreement may be in signed counterparts, each of which shall
constitute an original and all of which together shall constitute one and the same agreement.
14.
Purchases and Sales of Securities
. The Issuers and the Guarantors shall not, and
shall use their best efforts to cause their affiliates (as defined in Rule 405 under the Act) not
to, purchase and then resell or otherwise transfer any Securities for two (2) years, or if a Shelf
Registration Statement shall become effective during such two (2) year period, for the period of
such effectiveness.
15.
Third Party Beneficiaries
. Each Holder shall be a third party beneficiary to the
agreements made hereunder between the Issuers and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
16.
Headings
. The headings used herein are for convenience only and shall not affect the
construction hereof.
17.
Applicable Law
. 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 in the State of
New York.
18.
Severability
. In the event that any one of more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way impaired or affected
18
thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
19.
Securities Held by the Issuers, the Guarantors, etc.
Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New Securities is
required hereunder, Securities or New Securities, as applicable, held by the Issuers, the
Guarantors or their Affiliates (other than subsequent Holders of Securities or New Securities if
such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
19
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a building agreement among the Issuers, the Guarantors and the several Initial
Purchasers.
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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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PLAINS AAP, L.P.
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its General Partner
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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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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PAA FINANCE CORP.
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By:
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/s/ Phil Kramer
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Name: Phil Kramer
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Title: Executive 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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PLAINS MARKETING GP INC.
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By:
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/s/ Phil Kramer
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Name: Phil Kramer
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Title: Executive 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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PMC (NOVA SCOTIA) COMPANY
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By:
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/s/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President
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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/ Phil Kramer
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Name: Phil Kramer
Title: Executive Vice President
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BASIN HOLDINGS GP LLC
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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BASIN PIPELINE HOLDINGS, L.P.
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By:
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BASIN HOLDINGS GP LLC
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its General Partner
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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22
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RANCHO HOLDINGS GP LLC
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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RANCHO PIPELINE HOLDINGS, L.P.
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By:
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RANCHO HOLDINGS GP LLC
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its General Partner
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By:
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PLAINS PIPELINE, 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/ Phil Kramer
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Name: Phil Kramer
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Title: Executive Vice President and Chief
Financial Officer
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PLAINS LPG SERVICES 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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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23
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and Chief
Financial Officer
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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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/s/ Phil Kramer
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Phil Kramer
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Executive Vice President and
Chief Financial Officer
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24
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PLAINS MARKETING INTERNATIONAL 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/ Phil Kramer
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Name: Phil Kramer
|
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Title: Executive Vice President and Chief
Financial Officer
|
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PLAINS MARKETING INTERNATIONAL, L.P.
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By:
|
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PLAINS MARKETING INTERNATIONAL GP LLC
|
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|
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its General Partner
|
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By:
|
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PLAINS MARKETING, L.P.
|
|
|
|
|
|
|
its Sole Member
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
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PLAINS MARKETING GP INC.
|
|
|
|
|
|
|
its General Partner
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Phil Kramer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: Phil Kramer
|
|
|
|
|
|
|
|
|
Title: Executive Vice President and Chief
Financial Officer
|
|
|
25
|
|
|
|
|
|
|
|
|
|
|
PLAINS LPG MARKETING, L.P.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Phil Kramer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Name: Phil Kramer
|
|
|
|
|
|
|
|
|
Title: Executive Vice President and Chief
Financial Officer
|
|
|
26
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
J.P. MORGAN SECURITIES INC.
WACHOVIA CAPITAL MARKETS, LLC
BNP PARIBAS SECURITIES CORP.
SUNTRUST CAPITAL MARKETS, INC.
COMERICA SECURITIES, INC.
COMMERZBANK CAPITAL MARKETS CORP.
DNB NOR MARKETS, INC.
FORTIS SECURITIES LLC
HSBC SECURITIES (USA) INC.
ING FINANCIAL MARKETS LLC
MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC
PIPER JAFFRAY & CO.
RBC CAPITAL MARKETS CORPORATION
SCOTIA CAPITAL (USA) INC.
DAIWA SECURITIES AMERICA INC.
SG AMERICAS SECURITIES, LLC
WEDBUSH MORGAN SECURITIES INC.
WELLS FARGO SECURITIES, LLC
|
|
|
|
|
By:
|
|
CITIGROUP GLOBAL MARKETS INC.
|
|
|
|
|
|
|
|
By:
|
|
/s/ Brian D. Bednarski
|
|
|
|
|
Name: Brian D. Bednarski
|
|
|
|
|
Title:
Director
|
|
|
27
SCHEDULE 1
Plains Marketing, L.P.
Plains Pipeline, L.P.
Plains Marketing GP Inc.
Plains Marketing Canada LLC
PMC (Nova Scotia) Company
Plains Marketing Canada, L.P.
Basin Holdings GP LLC
Basin Pipeline Holdings, L.P.
Rancho Holdings GP LLC
Rancho Pipeline Holdings, L.P.
Plains LPG Services GP LLC
Plains LPG Services, L.P.
Lone Star Trucking, LLC
Plains Marketing International GP LLC
Plains Marketing International, L.P.
Plains LPG Marketing, L.P.
28
SCHEDULE 2
Citigroup Global Markets Inc.
UBS Securities LLC
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
BNP Paribas Securities Corp.
SunTrust Capital Markets, Inc.
Comerica Securities, Inc.
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
Fortis Securities LLC
HSBC Securities (USA) Inc.
ING Financial Markets LLC
Mitsubishi UFJ Securities International plc
Piper Jaffray & Co.
RBC Capital Markets Corporation
Scotia Capital (USA) Inc.
Daiwa Securities America Inc.
SG Americas Securities, LLC
Wedbush Morgan Securities Inc.
Wells Fargo Securities, LLC
29
ANNEX A
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an underwriter within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a Broker-Dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Issuers and the Guarantors have agreed that, starting
on the Expiration Date (as defined herein) and ending on the close of business one year after the
Expiration Date, they will make this Prospectus available to any Broker-Dealer for use in
connection with any such resale. See Plan of Distribution.
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. See Plan of Distribution.
2
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or other trading
activities. The Issuers and the Guarantors have agreed that, starting on the Expiration Date and
ending on the close of business one year after the Expiration Date, they will make this Prospectus,
as amended or supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until
, 200___[90 days] after commencement of the offering, all
dealers effecting transactions in the New Securities may be required to deliver a prospectus.
The Issuers and the Guarantors will not receive any proceeds from any sale of New Securities
by Brokers-Dealers. New Securities received by Broker-Dealers for their own account pursuant to
the Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the New
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such Broker-Dealer and/or the purchasers of any
such New Securities. Any Broker-Dealer that resells New Securities that were received by it for
its own account pursuant to the Exchange Offer and any broker or dealer that participates in a
distribution of such New Securities may be deemed to be an underwriter within the meaning of the
Act and any profit of any such resale of New Securities and any commissions or concessions received
by any such Persons may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an underwriter within the meaning of the
Act.
For a period of one year after the Expiration Date, the Issuers and the Guarantors will
promptly send additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any Broker-Dealer that requests such documents in the Letter of Transmittal. The
Issuers and the Guarantors have agreed to pay all expenses incident to the Exchange Offer
(including the reasonable expenses of one counsel for the holders of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any Broker-Dealers) against certain liabilities, including liabilities under
the Act.
If applicable, add information required by Regulation S-K Items 507 and/or 508.
3
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
Person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchange for New Securities were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an underwriter
within the meaning of the Act.
4