UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 9, 2006
Plains All American Pipeline, L.P.
(Exact name of registrant as specified in its charter)
DELAWARE |
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1-14569 |
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76-0582150 |
(State or other jurisdiction of |
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(Commission File Number) |
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(IRS Employer |
incorporation) |
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Identification No.) |
333 Clay Street, Suite 1600, Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Registrants telephone number, including area code 713-646-4100
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
Purchase Agreement. On May 9, 2006, Plains All American Pipeline, L.P. (the Partnership), PAA Finance Corp. (PAA Finance and together with the Partnership, the Issuers) and certain subsidiary guarantors, entered into a Purchase Agreement (the Purchase Agreement) with Citigroup Global Markets Inc. and UBS Securities LLC, each acting on behalf of itself and acting together as the representatives of BNP Paribas Securities Corp., Banc of America Securities LLC, Fortis Securities LLC, J.P. Morgan Securities Inc., Piper Jaffray & Co., Wachovia Capital Markets, LLC, Amegy Bank National Association, Commerzbank Capital Markets Corp., DnB NOR Markets, Inc., HSBC Securities (USA) Inc. and Mitsubishi UFJ Securities International plc (collectively, the Initial Purchasers), to sell $250 million aggregate principal amount of 6.70% Senior Notes due 2036 (the Notes) in accordance with a private placement conducted pursuant to Rule 144A under the Securities Act of 1933, as amended (the Offering). The Notes were issued at 99.819% of the face amount and pursuant to the Purchase Agreement the Issuers agreed to sell the Notes to the Initial Purchasers at a purchase price of 98.944% of the principal amount thereof. The material terms of the Notes are described below in Item 2.03.
Sixth Supplemental Indenture. On May 12, 2006, the Issuers and certain subsidiary guarantors entered into a Sixth Supplemental Indenture, dated as of May 12, 2006 (the Supplemental Indenture), to the Indenture, dated as of September 25, 2002 (the Original Indenture, together with the Supplemental Indenture, the Indenture), with Wachovia Bank, National Association, as Trustee. The material terms of the Notes issued under the Supplemental Indenture are described below in Item 2.03.
Registration Rights Agreement. On May 12, 2006, the Issuers and certain subsidiary guarantors entered into an Exchange and Registration Rights Agreement with the Initial Purchasers providing the holders of the Notes certain rights relating to registration of the Notes under the Securities Act. The material terms of the exchange offer are described below in Item 2.03.
Seventh Supplemental Indenture. On May 12, 2006, the Issuers and Plains LPG Services GP LLC, Plains LPG Services, L.P. and Lone Star Trucking, LLC (collectively, the Additional Subsidiary Guarantors) entered into a Seventh Supplemental Indenture, dated as of May 12, 2006, to the Original Indenture with Wachovia Bank, National Association, as Trustee, pursuant to which the Additional Subsidiary Guarantors agreed to unconditionally guarantee all of the Issuers obligations under their 7¾% Senior Notes due 2012, 5 5 / 8 % Senior Notes due 2013, 4.750% Senior Notes due 2009, 5.875% Senior Notes due 2016 and 5.25% Senior Notes due 2015.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in Item 1.01 is incorporated herein by reference.
On May 12, 2006 the Issuers offered and sold to the Initial Purchasers $250 million aggregate principal amount of 6.70% Notes due 2036.
The Notes will be general senior unsecured obligations of the Issuers and will rank equally with the existing and future senior unsecured indebtedness of the Issuers. Initially, all payments with respect to the Notes (including principal and interest) will be fully and unconditionally guaranteed, jointly and severally, by substantially all of the Issuers existing subsidiaries. In the future, the subsidiaries that guarantee other indebtedness of the Issuer or another subsidiary must also guarantee the Notes. The guarantees are also subject to release in certain circumstances. The guarantees are general unsecured obligations of the subsidiary guarantors and rank equally with the existing and future senior unsecured indebtedness of the subsidiary guarantors.
Interest on the Notes will accrue from May 12, 2006 and will be payable semi-annually in arrears on May 15 and November 15 of each year, commencing November 15, 2006. Interest will be payable to the holders of record at the close of business on the May 1 and November 1 preceding such interest payment dates. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months.
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The Issuers may redeem the Notes, in whole or in part, at any time and from time to time at a price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal of and interest on the Notes to be redeemed, discounted to the redemption date on a semi-annual basis at the adjusted treasury rate plus 25 basis points, together with accrued interest to the date of redemption.
The Indenture contains covenants that limit the Issuers and their subsidiaries from creating liens on its or their principal properties to secure debt and from engaging in certain sale-leaseback transactions. The indenture also limits the Issuers ability to engage in certain mergers, consolidations and sales of properties or assets.
Upon a continuing event of default, the trustee or the holders of 25% principal amount of the then-outstanding Notes may declare all the Notes immediately due and payable, except that a default resulting from the Issuers entry into a bankruptcy, insolvency or reorganization will automatically cause all outstanding Notes to become due and payable. Each of the following shall constitute an event of default under the Indenture with respect to the Notes:
default in payment when due of the principal of or any premium on any note at maturity, upon redemption or otherwise;
default for 60 days in the payment when due of interest on any note;
failure by the Issuers or, so long as the Notes are guaranteed by a subsidiary guarantor, by such subsidiary guarantor, for 30 days after receipt of notice from the trustee or the holders 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 will occur, 30 days after any breach of the covenants described in the Indenture);
default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any debt for money borrowed of the Issuers or any of the subsidiaries of Plains All American Pipeline (or the payment of which is guaranteed by Plains All American Pipeline or any of its subsidiaries), whether such debt or guarantee now exists or is created after the Issue Date, if (a) that default (x) is caused by a failure to pay principal of or premium, if any, or interest on such debt prior to the expiration of any grace period provided in such debt (a Payment Default), or (y) results in the acceleration of the maturity of such debt to a date prior to its originally stated maturity, and, (b) in each case described in clause (x) or (y) above, 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 million or more; provided 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;
specified events in bankruptcy, insolvency or reorganization of the Issuers or, so long as the Notes are guaranteed by a subsidiary guarantor, by such subsidiary guarantor;
so long as the Notes are guaranteed by a subsidiary guarantor:
the guarantee by such subsidiary guarantor ceases to be in full force and effect, except as otherwise provided in the Indenture;
the guarantee by such subsidiary guarantor is declared null and void in a judicial proceeding; or
such subsidiary guarantor denies or disaffirms its obligations under the Indenture or its guarantee.
The Notes have not been registered under the Securities Act and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act.
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The terms of the Exchange and Registration Rights Agreement described in Item 1.01 above requires the Issuers to register under the Securities Act exchange notes (and related guarantees) having substantially identical terms as the Notes (and related guarantees), and to complete offers to exchange such exchange notes for the Notes. If an exchange offer cannot be effected, the Issuers have agreed to file and keep effective a shelf registration statement for resale of the Notes. Failure of the Issuers to comply with the registration and exchange requirements set forth in the Exchange and Registration Rights Agreement will require the Issuers to pay additional interest semi-annually, over and above the state interest rate, on the Notes in an amount not to exceed a rate of 0.50% per year.
Item 7.01. Regulation FD Disclosure
In accordance with General Instruction B.2 of Form 8-K, the information presented herein under Item 7.01 shall not be deemed filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as expressly set forth by specific reference in such a filing.
On May 12, 2006, the Partnership issued a press release announcing that it has completed the Offering. The Partnership is furnishing a copy of such press release as Exhibit 99.1 hereto.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit 4.1 |
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Sixth Supplemental Indenture, dated as of May 12, 2006, to Indenture, dated as of September 25, 2002, among Plains All American Pipeline, L.P., PAA Finance Corp. and subsidiary guarantors signatory thereto and Wachovia Bank, National Association, as trustee. |
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Exhibit 4.2 |
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Exchange and Registration Rights Agreement, dated as of May 12, 2006, among Plains All American Pipeline, L.P., PAA Finance Corp. 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, Citigroup Global Markets Inc., UBS Securities LLC, BNP Paribas Securities Corp., Banc of America Securities LLC, Fortis Securities LLC, J.P. Morgan Securities Inc., Piper Jaffray & Co., Wachovia Capital Markets, LLC, Amegy Bank National Association, Commerzbank Capital Markets Corp., DnB NOR Markets, Inc., HSBC Securities (USA) Inc. and Mitsubishi UFJ Securities International plc. |
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Exhibit 4.3 |
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Seventh Supplemental Indenture, dated as of May 12, 2006, to Indenture, dated as of September 25, 2002, among Plains All American Pipeline, L.P., PAA Finance Corp., Plains LPG Services GP LLC, Plains LPG Services, L.P. and Lone Star Trucking, LLC and Wachovia Bank, National Association, as trustee. |
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Exhibit 10.1 |
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Purchase Agreement, dated May 9, 2006 among Plains All American Pipeline, L.P., PAA Finance Corp., Plains AAP, L.P., Plains All American GP LLC, 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, Citigroup Global Markets Inc., UBS Securities LLC, BNP Paribas Securities Corp., Banc of America Securities LLC, Fortis Securities LLC, J.P. Morgan Securities Inc., Piper Jaffray & Co., Wachovia Capital Markets, LLC, Amegy Bank National Association, Commerzbank Capital Markets Corp., DnB NOR Markets, Inc., HSBC Securities (USA) Inc. and Mitsubishi UFJ Securities International plc. |
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Exhibit 99.1 |
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Press Release of Plains All American Pipeline, L.P. dated May 12, 2006. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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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: |
/s/ Tim Moore |
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Name: |
Tim Moore |
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Title: |
Vice President |
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May 12, 2006 |
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Exhibit 4.1
Execution Version
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
as Issuers
and
THE SUBSIDIARY GUARANTORS NAMED HEREIN
as Guarantors
$250,000,000
SERIES A AND SERIES B
6.70 % SENIOR NOTES DUE 2036
SIXTH
SUPPLEMENTAL
INDENTURE
Dated as of May 12, 2006
WACHOVIA BANK, NATIONAL ASSOCIATION
as Trustee
TABLE OF CONTENTS
ARTICLE I |
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Section 1.01. |
Establishment |
1 |
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ARTICLE II DEFINITIONS AND INCORPORATION BY REFERENCE |
2 |
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Section 2.01. |
Definitions |
2 |
Section 2.02. |
Other Definitions |
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ARTICLE III THE NOTES |
8 |
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Section 3.01. |
Form |
8 |
Section 3.02. |
Issuance of Additional Notes |
8 |
Section 3.03. |
Transfer of Transfer Restricted Securities |
9 |
Section 3.04. |
Restrictive Legends |
11 |
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ARTICLE IV REDEMPTION AND PREPAYMENT |
12 |
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Section 4.01. |
Optional Redemption |
12 |
Section 4.02. |
Mandatory Redemption |
13 |
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ARTICLE V COVENANTS |
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Section 5.01. |
Compliance Certificate |
13 |
Section 5.02. |
Limitations on Liens |
13 |
Section 5.03. |
Restriction of Sale-Leaseback Transactions |
15 |
Section 5.04. |
SEC Reports; Financial Statements |
16 |
Section 5.05. |
Additional Subsidiary Guarantees |
16 |
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ARTICLE VI SUCCESSORS |
16 |
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Section 6.01. |
Consolidation and Mergers of the Issuers |
16 |
Section 6.02. |
Rights and Duties of Successor |
17 |
Section 6.03. |
Supplemental Indenture |
17 |
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ARTICLE VII DEFAULTS AND REMEDIES |
17 |
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Section 7.01. |
Events of Default |
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ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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Section 8.01. |
Option to Effect Legal Defeasance or Covenant Defeasance |
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Section 8.02. |
Legal Defeasance and Discharge |
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Section 8.03. |
Covenant Defeasance |
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Section 8.04. |
Conditions to Legal or Covenant Defeasance |
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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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Section 8.06. |
Repayment to Issuers |
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Section 8.07. |
Reinstatement |
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ARTICLE IX SUBSIDIARY GUARANTEES |
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Section 9.01. |
Subsidiary Guarantees |
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Section 9.02. |
Limitation on Liability |
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Section 9.03. |
Successors and Assigns |
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Section 9.04. |
No Waiver |
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Section 9.05. |
Modification |
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Section 9.06. |
Execution of Supplemental Indenture for Future Subsidiary Guarantors |
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Section 9.07. |
Release of Guarantee |
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ARTICLE X MISCELLANEOUS |
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Section 10.01. |
Additional Amendments |
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Section 10.02. |
Integral Part |
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Section 10.03. |
Adoption, Ratification and Confirmation |
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Section 10.04. |
Counterparts |
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Section 10.05. |
Governing Law |
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EXHIBIT A: |
Form of Note |
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EXHIBIT B: |
Form of Supplemental Indenture |
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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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EXHIBIT D: |
Transferee Letter of Representations |
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EXHIBIT E: |
Certificate to be Delivered Upon Exchange or Registration of Transfer of Securities Pursuant to Regulation S |
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SIXTH SUPPLEMENTAL INDENTURE dated as of May 12, 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 WACHOVIA 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 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:
Notes due 2036 (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.
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 UBS Securities LLC 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.
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:
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Principal Property means, whether owned or leased on the Issue Date or thereafter acquired: (1) any of the pipeline assets of the Partnership or the pipeline assets of any Subsidiary of the Partnership, including any related facilities employed in the transportation, distribution, terminalling, gathering, treating, processing, marketing or storage of crude oil or refined petroleum products, natural gas, natural gas liquids, fuel additives or petrochemicals, and (2) any processing or manufacturing plant or terminal owned or leased by the Partnership or any Subsidiary of the Partnership; except, in the case of either clause (1) or (2), (a) any such assets consisting of inventories, furniture, office fixtures and equipment, including data processing equipment, vehicles and equipment used on, or useful with, vehicles, and (b) any such assets, plant or terminal which, in the good faith opinion of the Board of Directors, is not material in relation to the activities of the Partnership or the activities of the Partnership and its Subsidiaries, taken as a whole.
Restricted Subsidiary means any Subsidiary of the Partnership owning or leasing, directly or indirectly through ownership in another Subsidiary, 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.
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Securities shall have the meaning assigned to such term in the Exchange and Registration Rights Agreement relating thereto.
Series A Notes means the Issuers 6.70% Series A Senior Notes due 2036 to be issued pursuant to this Supplemental Indenture.
Series B Notes means the Issuers 6.70% Series B Notes due 2036 to be issued pursuant to an Exchange Offer.
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:
Notwithstanding anything in the Indenture to the contrary, PAA Finance, Plains LPG Marketing, L.P., Atchafalaya Pipeline, L.L.C., Plains Marketing International GP LLC, Plains Marketing International, L.P. 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.
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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(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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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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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 $250,000,000. 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.
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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 May 9, 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 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.
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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.
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 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
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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.
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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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.
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.
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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.
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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.
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(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 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,
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(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.
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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:
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.
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In order to exercise either Legal Defeasance or Covenant Defeasance:
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The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or U.S. Government Obligations deposited pursuant to Section 8.04 hereof or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuers from time to time upon the written request of the Issuers any money or U.S. Government Obligations held by it as provided in Section 8.04 hereof which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
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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.
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forthwith become due and payable by such Subsidiary Guarantor for the purposes of this Section 9.01.
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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.
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[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: |
Plains AAP, L.P., its General Partner |
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By: |
Plains All American GP LLC, its General Partner |
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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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/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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Plains Marketing GP Inc., its General Partner |
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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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PLAINS PIPELINE, L.P. |
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Plains Marketing GP Inc., its General Partner |
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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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PLAINS MARKETING GP INC. |
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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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PLAINS MARKETING CANADA LLC |
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Plains Marketing, L.P., its Sole Member |
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Plains Marketing GP Inc., its General Partner |
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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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PMC (NOVA SCOTIA) COMPANY |
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/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President |
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PLAINS MARKETING CANADA, L.P. |
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PMC (Nova Scotia) Company, its General Partner |
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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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Plains Pipeline, L.P., its Sole |
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Member |
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Plains Marketing GP Inc., its General Partner |
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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 PIPELINE HOLDINGS, L.P. |
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Basin Holdings GP LLC, its General Partner |
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Plains Pipeline, L.P., its Sole Member |
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Plains Marketing GP Inc., its General Partner |
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/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President |
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RANCHO HOLDINGS GP LLC |
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Plains Pipeline, L.P., its Sole Member |
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Plains Marketing GP Inc., its General Partner |
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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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RANCHO PIPELINE HOLDINGS, L.P. |
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Rancho Holdings GP LLC, its General Partner |
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Plains Pipeline, L.P., its Sole Member |
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Plains Marketing GP Inc., its General Partner |
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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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PLAINS LPG SERVICES GP LLC |
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Plains Marketing, L.P., its Sole Member |
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Plains Marketing GP Inc., its General
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By: |
/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President and Chief
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PLAINS LPG SERVICES, L.P. |
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By: |
Plains LPG Services GP LLC, its General
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By: |
Plains Marketing, L.P., its Sole Member |
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By: |
Plains Marketing GP Inc., its General
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By: |
/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President and Chief
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LONE STAR TRUCKING, LLC |
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By: |
Plains LPG Services, L.P., its Sole Member |
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Plains LPG Services GP LLC, its General
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Plains Marketing, L.P., its Sole Member |
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Plains Marketing GP Inc., its General
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By: |
/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President and Chief
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TRUSTEE : |
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WACHOVIA BANK, NATIONAL ASSOCIATION, |
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as Trustee |
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By: |
/s/ Ronda L. Porman |
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Name: Ronda L. Porman |
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Title: Vice President |
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32
EXHIBIT A
(Form of Face of Note)
CUSIP |
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No. |
ISIN |
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$ |
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
6.70 % Series Senior Notes due 2036
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 May 15, 2036.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
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PLAINS ALL AMERICAN PIPELINE, L.P. |
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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.
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Trustee
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1 To be included only if the Note is issued in global form.
A-1
(Form of Back of Note)
6.70% Series Senior Notes due 2036
[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 501(A)(1), (2), (3) OR (7)
2 To be included only if the Note is issued in global form.
A-2
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 6.70% per annum from , until maturity. The Issuers shall pay interest semi-annually on May 15 and November 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 May 1 or November 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,
3 To be included on Transfer Restricted Securities only.
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, Wachovia 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 Sixth Supplemental Indenture dated as of May 12, 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 $250 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.
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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. Mandatory Redemption . The Issuers shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
7. Notice of Redemption . Notice of redemption shall be mailed at least 30 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed at its registered address. Notes in denominations larger than $1,000 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
A-5
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 denominations of $1,000 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 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
A-6
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 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.
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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.
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-8
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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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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(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-9
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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4 To be included only if the Note is issued in global form.
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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 Wachovia 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 Sixth Supplemental Indenture (the Sixth Supplemental Indenture and, together with the Original Indenture, the Indenture) dated as of May 12, 2006, among the Issuers, the Subsidiary Guarantors and the Trustee, providing for the issuance of the Issuers 6.70% Senior Notes due 2036 (the Notes);
WHEREAS, Section 5.05 of the Sixth 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.
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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 Sixth 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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WACHOVIA BANK, NATIONAL
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EXHIBIT C
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
PURSUANT TO RULE 144A OR RULE 501
Re: 6.70% Series [A/B] Senior Notes due 2036 of Plains All American Pipeline, L.P. and PAA Finance Corp. (together, the Issuers)
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:*
Such Security is being acquired for the Transferors own account without transfer.
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.
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.
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.
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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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C-2
EXHIBIT D
TRANSFEREE LETTER OF REPRESENTATIONS
Plains All American Pipeline, L.P.
PAA Finance Corp.
%Wachovia 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 6.70% Senior Notes due 2036 (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
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offer, sale or other transfer pursuant to clause (d) or (e) prior to the Resale Restriction 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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Upon transfer, the Securities should be registered in the name of the new beneficial owner as follows:
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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 Wachovia Bank, National Association, Trustee
5847 San Felipe, Suite 1050
Houston, Texas 77057
Attn: Corporate Trust Group
Re: Plains All American Pipeline, L.P. and PAA Finance Corp. (the Issuers) 6.70% Series [A/B] Senior Notes due 2036 (the Securities)
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
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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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E-2
Exhibit 4.2
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 May 12, 2006
PLAINS ALL AMERICAN PIPELINE,
L.P.
PAA FINANCE CORP.
6.70% Senior Notes due 2036
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
May 12, 2006
Citigroup Global Markets Inc.
UBS Securities LLC
BNP Paribas Securities Corp.
Banc of America Securities LLC
Fortis Securities LLC
J.P. Morgan Securities Inc.
Piper Jaffray & Co.
Wachovia Capital Markets, LLC
Amegy Bank National Association
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
HSBC Securities (USA) Inc.
Mitsubishi UFJ Securities International plc
c/o |
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Citigroup Global Markets Inc. |
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388 Greenwich St., 34th Floor |
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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 May 9, 2006 (the Purchase Agreement), $250,000,000 principal amount of 6.70% Senior Notes due 2036 (the Securities) relating to the initial placement of the Securities (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:
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 (but not directly from the Issuers and the Guarantors or any Affiliate of the Issuers and the Guarantors ) for New Securities.
Final Memorandum shall ha ve 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.
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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 Wachovia Bank, National Association, as trustee, as amended by the Sixth Supplemental Indenture, dated as of May 12, 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 ha ve 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.
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 ha ve the meaning set forth in the preamble hereto.
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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, t he 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 120 days following the date of the original issuance of the Securities (or if such 120th 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 210 days of the date of the original issuance of the Securities and to consummate the Registered Exchange Offer within 240 days of the date of the original issuance of the Securities (if such 210th or 240th day is not a Business Day, the next succeeding Business Day, as applicable).
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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 240 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.
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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.
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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.
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 Registration Statement, will reimburse the Initial Purchaser s 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
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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 Purchaser s 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.
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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.
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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 S ecurities 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:
(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 Purchaser s , 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
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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.
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 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.
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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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PLAINS AAP, L.P. |
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its General Partner |
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PLAINS ALL AMERICAN GP LLC |
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its General Partner |
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/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President and Chief |
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Financial Officer |
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PAA FINANCE CORP. |
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PLAINS MARKETING, L.P. |
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PLAINS PIPELINE, L.P. |
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PLAINS MARKETING GP INC. |
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PLAINS MARKETING CANADA LLC |
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PLAINS MARKETING, L.P. |
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PLAINS MARKETING GP INC. |
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its General Partner |
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PMC (NOVA SCOTIA) COMPANY |
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Executive Vice President |
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PLAINS MARKETING CANADA, L.P. |
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PLAINS MARKETING GP INC. |
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Executive Vice President and Chief |
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Financial Officer |
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BASIN HOLDINGS GP LLC |
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PLAINS PIPELINE, L.P. |
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PLAINS MARKETING GP INC. |
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Executive Vice President and Chief |
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Financial Officer |
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PLAINS LPG SERVICES, L.P. |
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Services GP LLC, its General
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Plains Marketing, L.P., its Sole Member |
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Plains Marketing
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/s/ Phil Kramer |
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Phil Kramer |
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Executive Vice President and Chief |
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Financial Officer |
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Plains LPG Services, L.P., its Sole Member |
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By: |
Plains LPG
Services GP LLC, its General
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Chief Financial Officer |
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The foregoing Agreement is hereby |
confirmed and accepted as of the |
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CITIGROUP GLOBAL MARKETS INC. |
UBS SECURITIES LLC |
BNP PARIBAS SECURITIES CORP. |
BANC OF AMERICA SECURITIES LLC |
FORTIS SECURITIES LLC |
J.P. MORGAN SECURITIES INC. |
PIPER JAFFRAY & CO. |
WACHOVIA CAPITAL MARKETS, LLC |
AMEGY BANK NATIONAL ASSOCIATION |
COMMERZBANK CAPITAL MARKETS CORP. |
DNB NOR MARKETS, INC. |
HSBC SECURITIES (USA) INC. |
MITSUBISHI UFJ SECURITIES INTERNATIONAL PLC |
By: |
CITIGROUP GLOBAL MARKETS INC. |
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/s/ Michael Caxey |
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Name: Michael Caxey |
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Title: Vice President |
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UBS SECURITIES LLC |
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Title: Executive Director |
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/s/ Ryan Donovan |
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Name: Ryan Donovan |
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Title: Director |
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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
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SCHEDULE 2
Citigroup Global Markets Inc.
UBS Securities LLC
BNP Paribas Securities Corp.
Banc of America Securities LLC
Fortis Securities LLC
J.P. Morgan Securities Inc.
Piper Jaffray & Co.
Wachovia Capital Markets, LLC
Amegy Bank National Association
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
HSBC Securities (USA) Inc.
Mitsubishi UFJ Securities International plc
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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.
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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.
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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.
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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.
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Exhibit 4.3
SEVENTH SUPPLEMENTAL INDENTURE
THIS SEVENTH SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of May 12, 2006, is 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), Plains LPG Services GP LLC, a Delaware limited liability company (LPG LLC), Plains LPG Services, L.P., a Delaware limited partnership (LPG LP) and Lone Star Trucking, LLC a California limited liability company (Lone Star and, together with LPG LLC and LPG LP, the Subsidiary Guarantors), direct or indirect subsidiaries of Plains All American Pipeline, L.P. (or its successor), a Delaware limited partnership (the Partnership), and Wachovia Bank, National Association, as trustee under the indenture referred to below (the Trustee).
WITNESSETH
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 First, Second, Third, Fourth and Fifth Supplemental Indentures (the Original Indenture as so supplemented, the Indenture), dated as of September 25, 2002, December 10, 2003, August 12, 2004, August 12, 2004 and May 27, 2005, respectively, among the Issuers, the Subsidiary Guarantors and the Trustee, providing for the issuance of the Issuers 7¾% Senior Notes due 2012, 5 5 / 8 % Senior Notes due 2013, 4.750% Senior Notes due 2009, 5.875% Senior Notes due 2016 and 5.25% Senior Notes due 2015, respectively (such Senior Notes being hereinafter referred to collectively as the Notes);
WHEREAS, Section 5.10 of the First Supplemental Indenture and Section 5.05 of the Second, Third, Fourth and Fifth Supplemental Indentures provide that under certain circumstances the Partnership is required to cause the Subsidiary Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the Subsidiary Guarantors 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 Guarantors 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.
2. Agreement to Guarantee . The Subsidiary Guarantors hereby agree, 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 First, Second, Third, Fourth and Fifth Supplemental Indentures, as applicable, 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.
[ Signature page follows .]
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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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Plains AAP, L.P., its General Partner |
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Plains All American GP LLC, its General Partner |
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PAA FINANCE CORP. |
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Phil Kramer |
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and Chief Financial Officer |
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Signature Page to Supplemental Indenture
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PLAINS LPG SERVICES GP LLC |
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WACHOVIA BANK, NATIONAL |
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Signature Page to Supplemental Indenture
Exhibit 10.1
PLAINS ALL AMERICAN PIPELINE, L.P.
PAA FINANCE CORP.
$250,000,000 6.70% Notes due 2036
Purchase Agreement
May 9, 2006
Citigroup Global Markets Inc. |
UBS Securities LLC |
BNP Paribas Securities Corp. |
Banc of America Securities LLC |
Fortis Securities LLC |
J.P. Morgan Securities Inc. |
Piper Jaffray & Co. |
Wachovia Capital Markets, LLC |
Amegy Bank National Association |
Commerzbank Capital Markets Corp. |
DnB NOR Markets, Inc. |
HSBC Securities (USA) Inc. |
Mitsubishi UFJ Securities International plc |
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), and PAA Finance Corp., a Delaware corporation (PAA Finance, and together with the Partnership, the Issuers), propose to issue and sell to the several initial purchasers named in Schedule 1 hereto (the Initial Purchasers) $250,000,000 aggregate principal amount of 6.70% Notes due 2036 (the Securities). The Securities are to be issued under an indenture dated as of September 25, 2002, among the Issuers and Wachovia Bank, National Association, as trustee (the Trustee), as amended by the Sixth Supplemental Indenture to be dated as of May 12, 2006, among the Issuers, the Trustee and the subsidiaries of the Partnership named therein (as amended, the Indenture). The Securities will have the benefit of a registration rights agreement (the Registration Rights Agreement), to be dated as of the Closing Date (as defined in Section 3), among the Issuers and the Initial Purchasers, pursuant to which and subject to the terms and conditions therein, the Issuers will agree to exchange the Securities with securities (the Exchange Securities) that have been registered under the Act. Certain terms used herein are defined in Section 17 hereof.
Plains AAP, L.P., a Delaware limited partnership (the General Partner), is the general partner of the Partnership. Plains All American GP LLC, a Delaware limited liability company (GP LLC), is the general partner of the General Partner. The Partnership owns 100% of the issued and outstanding shares of Plains Marketing GP Inc., a Delaware corporation (GP Inc.) and the general partner of each of Plains Marketing, L.P., a Texas limited partnership (Plains Marketing), and Plains Pipeline, L.P., a Texas limited partnership (Plains Pipeline). Plains Marketing owns 100% of the issued and outstanding shares of PAA Finance, a 100% membership interest in Plains Marketing Canada LLC, a Delaware limited liability company (PMC LLC), a 99.99% limited partner interest in Plains Marketing Canada, L.P., an Alberta limited partnership (PMC LP), a 100% membership interest in Plains LPG Services GP LLC, a Delaware limited liability company (LPG LLC) and a 99.99% limited partner interest in Plains LPG Services, L.P., a Delaware limited partnership (LPG LP). LPG LLC owns a 0.001% general partner interest in LPG LP. LPG LP owns a 100% membership interest in Lone Star Trucking, LLC, a California limited partnership (Lone Star). PMC LLC owns 100% of the issued and outstanding share capital of PMC (Nova Scotia) Company, a Nova Scotia unlimited liability company (PMC NS). PMC NS owns a 0.01% general partner interest in PMC LP. Plains Pipeline owns 100% membership interests in each of Basin Holdings GP LLC, a Delaware limited liability company (Basin LLC), and Rancho Holdings GP LLC, a Delaware limited liability company (Rancho LLC), and 99.999% limited partner interests in Basin Pipeline Holdings, L.P., a Delaware limited partnership (Basin LP) and Rancho Pipeline Holdings, L.P., a Delaware limited partnership (Rancho LP). The Partnership owns a 50% membership interest in PAA/Vulcan Gas Storage, LLC, a Delaware limited liability company (the Joint Venture). Basin LLC owns a 0.001% general partner interest in Basin LP, and Rancho LLC owns a 0.001% general partner interest in Rancho LP. GP Inc., Plains Marketing, Plains Pipeline, PAA Finance, PMC LLC, PMC LP, PMC NS, Basin LLC, Basin LP, Rancho LLC, Rancho LP, LPG LLC, LPG LP and Lone Star are collectively called the Subsidiaries. PMC LP and PMC NS are collectively called the Canadian Subsidiaries. The Partnership, PAA Finance, the General Partner, GP LLC, GP Inc., Plains Marketing, Plains Pipeline, PMC LLC, PMC LP, PMC NS, Basin LLC, Basin LP, Rancho LLC, Rancho LP, LPG LLC, LPG LP and Lone Star are collectively called the Plains Parties.
The sale of the Securities to the Initial Purchasers will be made without registration of the Securities under the Act in reliance upon exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Issuers have prepared a preliminary offering memorandum dated May 9, 2006 (the Preliminary Offering Memorandum), and have prepared a pricing supplement (the Pricing Supplement), dated May 9, 2006, the form of which is attached as Exhibit A hereto, describing the terms of the Securities, each for use by the Initial Purchasers in connection with their solicitation of offers to purchase the Securities. As used herein, Offering Memorandum shall mean the Preliminary Offering Memorandum, as supplemented by the Pricing Supplement and any exhibits thereto and any information incorporated by reference therein, in the most recent form that has been prepared and delivered to the Initial Purchasers in connection with their solicitation of offers to purchase Securities prior to the date and time that this Agreement is executed and delivered by the parties hereto (the Execution Time). Promptly after the Execution Time and in any event no later than the second business day following the Execution Time, the Issuers shall deliver or cause to be
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delivered copies, in such quantities and at such places as the Initial Purchasers shall reasonably request, of the Final Offering Memorandum (the Final Offering Memorandum), which will consist of the Preliminary Offering Memorandum with only such changes thereto as are required to reflect the information contained in the Pricing Supplement and such other changes as the Company reasonably deems appropriate following notice to the Initial Purchasers or their legal counsel, and from and after the time the Final Offering Memorandum is delivered as set forth in this sentence, all references herein to the Offering Memorandum shall be deemed to be a reference to the Offering Memorandum and the Final Offering Memorandum. The Issuers hereby confirm that they have authorized the use of the Offering Memorandum and the Final Offering Memorandum, and any amendment or supplement thereto, in connection with the offer and sale of the Securities by the Initial Purchasers. Unless stated to the contrary, any references herein to the terms amend, amendment or supplement with respect to the Offering Memorandum and the Final Offering Memorandum shall be deemed to refer to and include any information filed under the Exchange Act subsequent to the date of such Offering Memorandum or Final Offering Memorandum which is incorporated by reference therein.
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Any certificate signed by any officer of the Plains Parties and delivered to the Initial Purchasers or counsel for the Initial Purchasers in connection with the offering of the Securities shall be deemed a representation and warranty by the Plains Parties, as to matters covered thereby, to the Initial Purchasers.
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In addition, such counsel shall state that they have participated in conferences with officers and other representatives of the Plains Parties, representatives of the independent registered public accountants of the Partnership and your representatives, at which the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not independently verified, is not passing on, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Offering Memorandum (except to the extent specified in the foregoing opinion), no facts have come to such counsels attention that lead such counsel to believe that the Preliminary Offering Memorandum and the Pricing Supplement as of the Execution Time and as of the Closing Date, and the Final Offering Memorandum as of its date and as of the Closing Date (in each case other than (i) the financial statements included or incorporated by reference therein, including the notes and schedules thereto and the auditors reports thereon, and (ii) the other financial and statistical information included or incorporated by reference therein, as to which such counsel need not comment), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Plains Parties and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, (C) state that their opinion is limited to federal laws, the Delaware LP Act, the Delaware LLC Act, the DGCL, the laws of the State of Texas and the contract laws of the State of New York, (D) with respect to the opinions expressed in paragraph (i) above as to the due qualification or registration as a foreign limited partnership, corporation or limited liability company, as the case may be, of each of the Plains Parties, state that such opinions are based upon certificates of foreign qualification or registration provided by the Secretary of State of
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the States listed on Exhibit C hereto (each of which shall be dated as of a date not more than fourteen days prior to the Closing Date and shall be provided to you) and (E) state that they express no opinion with respect to (i) any permits to own or operate any real or personal property or (ii) state or local taxes or tax statutes to which any of the limited partners of the Partnership or any of the Plains Parties may be subject.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Plains Parties and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine and (C) state that such opinions are limited to the laws of the State of Texas, excepting therefrom municipal and local ordinances and regulations.
In rendering such opinion, such counsel shall state that such opinion letter may be relied upon only by the Initial Purchasers and their counsel in connection with the transactions contemplated by this Agreement and no other use or distribution of such opinion letter may be made without such counsels prior written consent.
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In addition, such counsel shall state that he has participated in discussions with officers and other representatives of the Plains Parties and the independent registered public accountants of the Partnership and your representatives, at which the contents of the Offering Memorandum and related matters were discussed, and although such counsel has not independently verified, is not passing on, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in, the Offering Memorandum, no facts have come to such counsels attention that lead such counsel to believe that the Preliminary Offering Memorandum and the Pricing Supplement as of the Execution Time and as of the Closing Date, and the Final Offering Memorandum as of its date and as of the Closing Date (in each case other than (i) the financial statements included or incorporated by reference therein, including the notes and schedules thereto and the auditors reports thereon, and (ii) the other financial and statistical information included or incorporated by reference therein, as to which such counsel need not comment), contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Plains Parties and upon information obtained from public officials, (B) assume that all documents submitted to him as originals are authentic, that all copies submitted to him conform to the originals thereof, and that the signatures on all documents examined by him are genuine, (C) state that such opinions are limited to federal laws and the Delaware LP Act, the Delaware LLC Act and the DGCL and the laws of the State of Texas and (D) state that he expresses no opinion with respect to state or local taxes or tax statutes.
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In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates of officers and employees of the Plains Parties and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by them are genuine, (C) state that such opinions are limited to federal laws of Canada and the laws of the Provinces of Alberta and Nova Scotia, excepting therefrom municipal and local ordinances and regulations and (D) state that they express no opinion with respect to state or local taxes or tax statutes to which any of the limited partners of the Partnership or any of the Plains Parties may be subject.
In rendering such opinion, such counsel shall state that (A) Vinson & Elkins L.L.P. is thereby authorized to rely upon such opinion letter in connection with the transactions contemplated by this Agreement as if such opinion letter were addressed and delivered to them on the date thereof and (B) subject to the foregoing, such opinion letter may be relied upon only by the Initial Purchasers and their counsel in connection with the transactions contemplated by this Agreement and no other use or distribution of this opinion letter may be made without such counsels prior written consent.
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All such opinions, certificates, letters and other documents referred to in this Section 6 will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. The Issuers shall furnish to the Initial Purchasers conformed copies of such opinions, certificates, letters and other documents in such number as they shall reasonably request.
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If any of the conditions specified in this Section 6 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Initial Purchasers and counsel for the Initial Purchasers, this Agreement and all obligations of the Initial Purchasers hereunder may be cancelled at, or at any time prior to, the Closing Date by the Initial Purchasers. Notice of such cancellation shall be given to the Issuers in writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Partnership, at 1001 Fannin, Houston, Texas 77002, on the Closing Date.
31
(b) The Initial Purchasers, severally and not jointly, agree to indemnify and hold harmless the Plains Parties, their respective directors and the officers and each person who controls the Plains Parties within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Plains Parties to the Initial Purchasers, but only with reference to written information relating to the Initial Purchasers furnished to the Issuers or GP LLC by or on behalf of the Initial Purchasers specifically for inclusion in the Preliminary Offering Memorandum, the Pricing Supplement or the Final Offering Memorandum (or in any amendment or supplement to the Final Offering Memorandum). This indemnity agreement will be in addition to any liability which the Initial Purchasers may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of 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 8, 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 (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement
32
as to or an admission of fault, culpability or failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Plains Parties and the Initial Purchasers agree 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 the Plains Parties and the Initial Purchasers may be subject in such proportion as is appropriate to reflect the relative benefits received by the Plains Parties on the one hand and by the Initial Purchasers on the other from the offering of the Securities; provided , however , that in no case shall the Initial Purchaser be responsible for any amount in excess of the purchase discount or commission applicable to the Securities purchased by the Initial Purchaser hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Plains Parties and the Initial Purchasers shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Plains Parties on the one hand and of the Initial Purchasers on the other in connection with the statements or omissions which resulted in such Losses, as well as any other relevant equitable considerations. Benefits received by the Plains Parties shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by it, and benefits received by the Initial Purchasers shall be deemed to be equal to the total purchase discounts and commissions in each case set forth on the cover of the Final Offering Memorandum. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the Plains Parties on the one hand or the Initial Purchasers on the other, the intent of the parties and their relative knowledge, information and opportunity to correct or prevent such untrue statement or omission. The Plains Parties and the Initial Purchasers agree that it would not be just and equitable if contribution were determined by pro rata allocation 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 8, each person who controls the Initial Purchasers within the meaning of either the Act or the Exchange Act and each director, officer, employee and agent of the Initial Purchasers shall have the same rights to contribution as the Initial Purchasers, and any person who controls the Plains Parties within the meaning of either the Act or the Exchange Act and the respective officers and directors of the Plains Parties shall have the same rights to contribution as the Plains Parties, subject in each case to the applicable terms and conditions of this paragraph (d).
33
34
35
Act shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
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.
Investment Company Act shall mean the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission promulgated thereunder.
Regulation D shall mean Regulation D under the Act.
Regulation S shall mean Regulation S under the Act.
Trust Indenture Act shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission promulgated thereunder.
36
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this Agreement and your acceptance shall represent a binding agreement among the Plains Parties and the Initial Purchasers.
|
Very truly yours, |
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PLAINS ALL AMERICAN PIPELINE, L.P. |
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By: |
PLAINS AAP, L.P. |
||
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its General Partner |
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||
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By: |
PLAINS ALL AMERICAN GP LLC |
||
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its General Partner |
||
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||
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||
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
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Title: |
Executive Vice President and Chief |
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Financial Officer |
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PAA FINANCE CORP. |
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
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Title: |
Executive Vice President and Chief |
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Financial Officer |
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PLAINS AAP, L.P. |
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By: |
PLAINS ALL AMERICAN GP LLC |
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its General Partner |
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
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Title: |
Executive Vice President and Chief |
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Financial Officer |
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PLAINS ALL AMERICAN GP LLC |
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
37
|
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Title: |
Executive Vice President and Chief |
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Financial Officer |
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PLAINS MARKETING, L.P. |
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By: |
PLAINS MARKETING GP INC. |
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its General Partner |
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
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|
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Title: |
Executive Vice President and Chief |
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|
Financial Officer |
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PLAINS PIPELINE, L.P. |
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By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
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|
|
|
|
|
|
|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
|
|
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|
|
|
PLAINS MARKETING GP INC. |
|||
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|
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By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
38
|
PLAINS MARKETING CANADA LLC |
|||
|
|
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|
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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 |
|
|
|
|
|
|
PMC (NOVA SCOTIA) COMPANY |
|||
|
|
|||
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|||
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By: |
/s/ Phil Kramer |
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|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President |
|
|
|
|
|
|
PLAINS MARKETING CANADA, L.P. |
|||
|
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|
|
|
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By: |
PMC (NOVA SCOTIA) COMPANY |
||
|
|
its General Partner |
||
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|
|
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|
|
|
|
|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President |
|
|
|
|
|
|
BASIN HOLDINGS GP LLC |
|||
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|
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By: |
PLAINS PIPELINE, L.P. |
||
|
|
its Sole Member |
||
|
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|
|
|
|
By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
|
|
|
|
|
|
|
|
|
|
|
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By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
39
|
BASIN PIPELINE HOLDINGS, L.P. |
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By: |
BASIN HOLDINGS GP LLC |
||
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|
its General Partner |
||
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By: |
PLAINS PIPELINE, L.P. |
||
|
|
its Sole Member |
||
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|
|
|
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By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
|
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|
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By: |
/s/ Phil Kramer |
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Name: |
Phil Kramer |
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|
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Title: |
Executive Vice President and Chief |
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|
|
|
Financial Officer |
|
|
|
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|
RANCHO HOLDINGS GP LLC |
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By: |
PLAINS PIPELINE, L.P. |
||
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|
its Sole Member |
||
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|
|
By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
|
|
|
|
|
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|
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|
RANCHO PIPELINE HOLDINGS, L.P. |
|||
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By: |
RANCHO HOLDINGS GP LLC |
||
|
|
its General Partner |
||
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|
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|
By: |
PLAINS PIPELINE, 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 |
40
|
PLAINS LPG SERVICES GP LLC |
|||
|
|
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|
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By: |
PLAINS MARKETING, L.P. |
||
|
|
its Sole Member |
||
|
|
|
|
|
|
By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
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|
|
|
|
|
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|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
|
|
|
|
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|
PLAINS LPG SERVICES, L.P. |
|||
|
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By: |
PLAINS LPG SERVICES GP LLC |
||
|
|
its General Partner |
||
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|
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By: |
PLAINS MARKETING, L.P. |
||
|
|
its Sole Member |
||
|
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|
|
|
|
By: |
PLAINS MARKETING GP INC. |
||
|
|
its General Partner |
||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
|
Title: |
Executive Vice President and Chief |
|
|
|
|
Financial Officer |
41
|
LONE STAR TRUCKING, LLC |
|||
|
|
|
|
|
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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 |
||
|
|
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Phil Kramer |
|
|
|
|
Name: |
Phil Kramer |
|
|
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Title: |
Executive Vice President and Chief |
|
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|
Financial Officer |
42
The
foregoing Agreement is hereby
confirmed and accepted by the Initial
Purchasers as of the date first above written.
Citigroup Global Markets Inc.
UBS Securities LLC
BNP Paribas Securities Corp.
Banc of America Securities LLC
Fortis Securities LLC
J.P. Morgan Securities Inc.
Piper Jaffray & Co.
Wachovia Capital Markets, LLC
Amegy Bank National Association
Commerzbank Capital Markets Corp.
DnB NOR Markets, Inc.
HSBC Securities (USA) Inc.
Mitsubishi UFJ Securities International plc
By: |
Citigroup Global Markets Inc. |
|
|
|
|
|
|
|
By: |
/s/ Brian Bednarski |
|
|
Name: Brian Bednarski |
|
|
Title: Director |
|
|
|
|
|
|
|
By: |
UBS Securities LLC |
|
|
|
|
|
|
|
By: |
/s/ Scott D. Whitney |
|
|
Name: Scott D. Whitney |
|
|
Title: Executive Director |
|
|
|
|
|
|
|
By: |
/s/ Marc J. Ordona |
|
|
Name: Marc J. Ordona |
|
|
Title: Director |
43
Schedule 1
Initial Purchasers |
|
Principal Amount of
|
|
|
|
|
|
|
|
Citigroup Global Markets Inc. |
|
75,000,000 |
|
|
UBS Securities LLC |
|
75,000,000 |
|
|
BNP Paribas Securities Corp. |
|
25,000,000 |
|
|
Banc of America Securities LLC |
|
10,000,000 |
|
|
Fortis Securities LLC |
|
10,000,000 |
|
|
J.P. Morgan Securities Inc. |
|
10,000,000 |
|
|
Piper Jaffray & Co. |
|
10,000,000 |
|
|
Wachovia Capital Markets, LLC |
|
10,000,000 |
|
|
Amegy Bank National Association |
|
5,000,000 |
|
|
Commerzbank Capital Markets Corp. |
|
5,000,000 |
|
|
DnB NOR Markets, Inc. |
|
5,000,000 |
|
|
HSBC Securities (USA) Inc. |
|
5,000,000 |
|
|
Mitsubishi UFJ Securities International plc |
|
5,000,000 |
|
|
Total |
|
$ |
250,000,000 |
|
44
EXHIBIT A
Form of Pricing Supplement
PRICING SUPPLEMENT DATED May 9, 2006
ISSUERS: Plains All American Pipeline, L.P. and PAA Finance Corp.
SIZE: $250mm
ISSUE PRICE: 99.819%
NET PROCEEDS TO ISSUERS: $246,760,000
COUPON: 6.70%
MAKE WHOLE CALL: T + 25 bp
SPREAD: 140 bp
YIELD: 6.714%
INTEREST PAYMENT DATES: May 15 and November 15
FIRST INTEREST PAYMENT: November 15, 2006
FORMAT: 144A
and Regulation S
BOOKS: Citigroup, UBS Investment Bank
LD MGR: BNP Paribas
CO MGRS: Amegy Bank National Association, Commerzbank
Corporates & Markets, DnB NOR Markets, HSBC, Mitsubishi UFJ Securities
USE of PROCEEDS: Repay outstanding indebtedness under
revolving credit facility
SETTLEMENT: (T+3) May 12, 2006
MARKETING: Preliminary
Offering Memorandum dated May 9, 2006
The information in this Pricing Supplement supplements the Preliminary Offering Memorandum and supersedes the information in the Preliminary Offering Memorandum to the extent inconsistent with the information in the Preliminary Offering Memorandum.
The securities referred to herein have not been registered under the Securities Act of 1933 and may not be offered or sold in the United States or to US persons other than qualified institutional buyers as defined in Rule 144A under the Securities Act or outside the United States to non-US persons pursuant to Regulation S under the Securities Act. Nothing in this communication shall constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction in which such offer or sale would be unlawful. Offers of these securities are made only by means of the offering memorandum. You are reminded that this notice has been delivered to you on the basis that you are a person into whose possession this notice may be lawfully delivered in accordance with the laws of jurisdiction in which you are located and you may not nor are you authorized to deliver this notice to any other person and you agree not to copy or retransmit this notice. See Notice to Investors in the Preliminary Offering Memorandum.
A-1
EXHIBIT B
Selling Restrictions for Offers and
Sales Outside the United States
(1)(a) The Securities have not been and will not be registered under the Act and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (other than a distributor) except in accordance with Regulation S under the Act or pursuant to an exemption from the registration requirements of the Act. The Initial Purchasers represent and agree that, except as otherwise permitted by Section 4(a)(i) of the Agreement to which this is an exhibit, they have not offered and sold the Securities, and will not offer and sell the Securities, (i) as part of their distribution at any time; and (ii) otherwise until 40 days after the later of the commencement of the offering and the Closing Date, except in accordance with Rule 903 of Regulation S under the Act or another exemption from the registration requirements of the Act. The Initial Purchasers represent and agree that neither they, nor any of their Affiliates nor any person acting on their behalf or on behalf of their Affiliates has engaged or will engage in any directed selling efforts with respect to the Securities, and that they and their Affiliates have complied and will comply with the offering restrictions requirement of Regulation S. The Initial Purchasers agree that, at or prior to the confirmation of sale of Securities (other than a sale of Securities pursuant to Section 4(a)(i) of the Agreement to which this is an exhibit), they shall have sent to each distributor, dealer or person receiving a selling concession, fee or other remuneration that purchases Securities from them during the distribution compliance period referred to in Regulation S under the Act a confirmation or notice to substantially the following effect:
The Securities covered hereby have not been registered under the U.S. Securities Act of 1933 (the Act) and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise until 40 days after the later of the date of the Securities were first offered to persons other than distributors (as defined in Regulation S under the Act) in reliance upon Regulation S under the Act and the Closing Date, except in either case in accordance with Regulation S or Rule 144A under the Act. Terms used above have the meanings given to them by Regulation S under the Act.
(b) The Initial Purchasers also represent and agree that they have not entered and will not enter into any contractual arrangement with any distributor with respect to the distribution of the Securities, except with their Affiliates or with the prior written consent of the Partnership.
(c) Terms used in this Section have the meanings given to them by Regulation S.
(2) The Initial Purchasers represent and agree that (i) they have not offered or sold and, prior to the date six months after the date of issuance of the Securities, will not offer or sell any Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent)
B-1
for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995, as amended; (ii) they have complied and will comply with all applicable provisions of the Financial Services and Markets Act 2000 (the FSMA) with respect to anything done by them in relation to the Securities in, from or otherwise involving the United Kingdom; and (iii) they have only communicated, or caused to be communicated, and will only communicate, or cause to be communicated, any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) received by them in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to us.
EXHIBIT C
Form of Exhibit A to Opinions in Sections 6(a) and (d)
Entity |
|
Jurisdiction in which registered or qualified |
|
|
|
Plains All American Pipeline, L.P. |
|
Texas |
|
|
|
PAA Finance Corp. |
|
None |
|
|
|
Plains AAP, L.P. |
|
Texas |
|
|
|
Plains All American GP LLC |
|
California, Louisiana, Oklahoma, |
|
|
Texas |
|
|
|
Plains Marketing GP Inc. |
|
California, Illinois, Louisiana, |
|
|
Oklahoma, Texas |
|
|
|
Plains Marketing, L.P. |
|
California, Illinois, Louisiana, Oklahoma |
|
|
|
Plains Pipeline, L.P. |
|
California, Illinois, Louisiana, Oklahoma, Texas |
|
|
|
Plains Marketing Canada LLC |
|
None |
|
|
|
PMC (Nova Scotia) Company |
|
Alberta, British Columbia, Manitoba, Ontario, Saskatchewan |
|
|
|
Plains Marketing Canada, L.P. |
|
Manitoba, Saskatchewan, California, Louisiana, Maryland, Michigan, North Dakota, Oklahoma, Texas |
|
|
|
Basin Holdings GP LLC |
|
Oklahoma, Texas |
|
|
|
Basin Pipeline Holdings, LP |
|
Oklahoma, Texas |
|
|
|
Rancho Holdings GP LLC |
|
Texas |
|
|
|
Rancho Pipeline Holdings, L.P. |
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Texas |
|
|
|
PAA/Vulcan Gas Storage, LLC |
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Texas |
|
|
|
Plains LPG Services GP LLC |
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Illinois, Mississippi, North Dakota |
|
|
|
Plains LPG Services, L.P. |
|
California, Illinois, Michigan, New Hampshire, Oklahoma, Texas |
|
|
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Lone Star Trucking, LLC |
|
None |
C-1
Exhibit 99.1
|
News Release |
Contacts: |
Phillip D. Kramer |
Brad A. Thielemann |
|
Manager, Special Projects |
Executive Vice President and CFO |
|
713/646-4222 800/564-3036 |
713/646-4560 800/564-3036 |
FOR IMMEDIATE RELEASE
PLAINS ALL AMERICAN COMPLETES PRIVATE PLACEMENT OF $250 MILLION OF SENIOR NOTES
(Houston May 12, 2006) Plains All American Pipeline, L.P. (NYSE: PAA) announced today that it has completed its previously announced private placement of $250 million of 30-year senior notes. The senior notes were issued at 99.819% of their principal amount and have a fixed-rate interest coupon of 6.70% and a maturity date of May 15, 2036. The senior notes are not registered under the Securities Act of 1933, as amended, and may not be offered or sold in the United States absent registration or an applicable exemption from registration requirements.
The proceeds from the offering, net of initial purchasers discounts and offering expenses, totaled approximately $246.8 million.. Proceeds were used to repay amounts outstanding under its revolving credit facilities and for general partnership purposes.
This news release does not constitute an offer to sell or a solicitation of an offer to buy the securities described herein, nor shall there be any sale of these securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any jurisdiction.
Plains All American Pipeline, L.P. is engaged in interstate and intrastate crude oil transportation, and crude oil gathering, marketing, terminalling and storage, as well as the marketing and storage of liquefied petroleum gas and other petroleum products, in the United States and Canada. Through its 50% equity interest in PAA/Vulcan Gas Storage, LLC, the Partnership is also engaged in the development and operation of natural gas storage facilities. The Partnerships common units are traded on the New York Stock Exchange under the symbol PAA. The Partnership is headquartered in Houston, Texas.
Except for the historical information contained herein, the matters discussed in this news release are forward-looking statements that involve certain risks and uncertainties. These risks and uncertainties include, among other things, fluctuations in the capital markets and other factors and uncertainties inherent in the transportation, gathering, marketing, terminalling and storage of crude oil. More information regarding such risks and uncertainties may be found in the Partnerships most recent Form 10-K, Form 10-Q and Forms 8-K filed with the Securities and Exchange Commission.
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