Exhibit 4.3
COPANO ENERGY FINANCE CORPORATION
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HEREOF
7.125% SENIOR NOTES DUE 2021
FIRST SUPPLEMENTAL INDENTURE
Dated as of April 5, 2011
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
CROSS-REFERENCE TABLE*
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Trust Indenture |
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Indenture |
Act Section |
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Section |
310(a)(1) |
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8.10 |
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(a)(2) |
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8.10 |
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(a)(3) |
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N/A |
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(a)(4) |
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N/A |
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(a)(5) |
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8.10 |
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(b) |
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8.10 |
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(c) |
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N/A |
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311(a) |
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8.11 |
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(b) |
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8.11 |
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(c) |
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N/A |
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312(a) |
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3.05 |
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(b) |
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11.03 |
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(c) |
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11.03 |
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313(a) |
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8.06 |
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(b)(1) |
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8.06 |
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(b)(2) |
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8.06, 8.07 |
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(c) |
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8.06, 12.02 |
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(d) |
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8.06 |
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314(a) |
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5.03, 5.04, 12.02 |
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(b) |
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N/A |
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(c)(1) |
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12.04 |
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(c)(2) |
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12.04 |
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(c)(3) |
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N/A |
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(d) |
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N/A |
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(e) |
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12.05 |
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(f) |
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N/A |
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315(a) |
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8.01 |
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(b) |
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8.05, 12.02 |
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(c) |
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8.01 |
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(d) |
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8.01 |
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(e) |
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7.11 |
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316(a)(last sentence) |
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3.08 |
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(a)(1)(A) |
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7.05 |
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(a)(1)(B) |
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7.04 |
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(a)(2) |
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N/A |
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(b) |
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7.07 |
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(c) |
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8.04 |
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317(a)(1) |
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8.08 |
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(a)(2) |
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8.09 |
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(b) |
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3.04 |
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318(a) |
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12.01 |
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(b) |
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N/A |
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(c) |
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12.01 |
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N/A |
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means not applicable. |
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* |
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This Cross-Reference Table is not part of the Indenture. |
i
TABLE OF CONTENTS
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Page |
ARTICLE 1 APPLICATION OF SUPPLEMENTAL INDENTURE |
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2 |
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Section 1.01. Application of this Supplemental Indenture |
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2 |
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Section 1.02. Effect of Supplemental Indenture |
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2 |
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ARTICLE 2 DEFINITIONS AND INCORPORATION BY REFERENCE |
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3 |
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Section 2.01. Definitions |
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3 |
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Section 2.02. Other Definitions |
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27 |
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Section 2.03. Incorporation by Reference of Trust Indenture Act |
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27 |
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Section 2.04. Rules of Construction |
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27 |
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ARTICLE 3 THE NOTES |
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28 |
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Section 3.01. Form and Dating |
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28 |
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Section 3.02. Form of Legend for Global Notes |
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28 |
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Section 3.03. Title and Terms |
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29 |
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Section 3.04. Denominations |
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29 |
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Section 3.05. Execution and Authentication |
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30 |
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Section 3.06. Registrar and Paying Agent |
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30 |
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Section 3.07. Paying Agent to Hold Money in Trust |
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32 |
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Section 3.08. Noteholder Lists |
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32 |
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Section 3.09. Replacement Notes |
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32 |
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Section 3.10. Outstanding Notes |
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33 |
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Section 3.11. Treasury Notes |
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33 |
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Section 3.12. Payment of Interest; Interest Rights Preserved |
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33 |
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Section 3.13. Persons Deemed Owners |
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34 |
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Section 3.14. Temporary Notes |
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34 |
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Section 3.15. Cancellation |
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35 |
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Section 3.16. Computation of Interest |
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35 |
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Section 3.17. Global Securities |
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35 |
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Section 3.18. CUSIP Numbers |
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35 |
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ARTICLE 4 REDEMPTION AND PREPAYMENT |
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35 |
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Section 4.01. Notices to Trustee |
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35 |
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Section 4.02. Selection of Notes to Be Redeemed |
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36 |
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Section 4.03. Notice of Redemption |
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36 |
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Section 4.04. Effect of Notice of Redemption |
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37 |
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Section 4.05. Deposit of Redemption Price |
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37 |
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Section 4.06. Notes Redeemed in Part |
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38 |
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Section 4.07. Optional Redemption |
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38 |
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Section 4.08. Mandatory Redemption |
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39 |
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Section 4.09. Offer to Purchase by Application of Excess Proceeds |
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39 |
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ARTICLE 5 COVENANTS |
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41 |
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Section 5.01. Payment of Notes |
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41 |
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Section 5.02. Maintenance of Office or Agency |
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41 |
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ii
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Page |
Section 5.03. Reports |
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42 |
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Section 5.04. Compliance Certificate |
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42 |
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Section 5.05. Taxes |
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43 |
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Section 5.06. Stay, Extension and Usury Laws |
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43 |
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Section 5.07. Limitation on Restricted Payments |
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43 |
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Section 5.08. Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries |
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46 |
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Section 5.09. Limitation on Incurrence of Indebtedness and Issuance of
Preferred Stock |
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48 |
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Section 5.10. Limitation on Asset Sales |
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52 |
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Section 5.11. Limitation on Transactions with Affiliates |
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53 |
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Section 5.12. Limitation on Liens |
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55 |
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Section 5.13. Additional Subsidiary Guarantees |
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55 |
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Section 5.14. Corporate Existence |
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56 |
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Section 5.15. Offer to Repurchase Upon Change of Control |
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56 |
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Section 5.16. No Inducements |
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58 |
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Section 5.17. Permitted Business Activities |
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59 |
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Section 5.18. Sale and Leaseback Transactions |
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59 |
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Section 5.19. Covenant Termination |
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59 |
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Section 5.20. Designation of Restricted and Unrestricted Subsidiaries |
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60 |
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ARTICLE 6 SUCCESSORS |
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60 |
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Section 6.01. Merger, Consolidation, or Sale of Assets |
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60 |
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Section 6.02. Successor Substituted |
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62 |
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ARTICLE 7 DEFAULTS AND REMEDIES |
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62 |
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Section 7.01. Events of Default |
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62 |
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Section 7.02. Acceleration |
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64 |
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Section 7.03. Other Remedies |
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65 |
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Section 7.04. Waiver of Past Defaults |
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65 |
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Section 7.05. Control by Majority |
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65 |
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Section 7.06. Limitation on Suits |
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65 |
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Section 7.07. Rights of Holders of Notes to Receive Payment |
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66 |
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Section 7.08. Collection Suit by Trustee |
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66 |
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Section 7.09. Trustee May File Proofs of Claim |
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66 |
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Section 7.10. Priorities |
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67 |
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Section 7.11. Undertaking for Costs |
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67 |
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ARTICLE 8 TRUSTEE |
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67 |
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Section 8.01. Duties of Trustee |
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67 |
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Section 8.02. Rights of Trustee |
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68 |
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Section 8.03. Individual Rights of Trustee |
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69 |
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Section 8.04. Trustees Disclaimer |
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69 |
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Section 8.05. Notice of Defaults |
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70 |
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Section 8.06. Reports by Trustee to Holders of the Notes |
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70 |
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Section 8.07. Compensation and Indemnity |
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70 |
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Section 8.08. Replacement of Trustee |
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71 |
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Section 8.09. Successor Trustee by Merger, etc. |
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72 |
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iii
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Page |
Section 8.10. Eligibility; Disqualification |
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72 |
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Section 8.11. Preferential Collection of Claims Against Issuers |
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73 |
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ARTICLE 9 LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
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73 |
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Section 9.01. Option to Effect Legal Defeasance or Covenant Defeasance |
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73 |
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Section 9.02. Legal Defeasance and Discharge |
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73 |
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Section 9.03. Covenant Defeasance |
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74 |
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Section 9.04. Conditions to Legal or Covenant Defeasance |
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74 |
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Section 9.05. Deposited Money and Government Securities to be Held in Trust; Other
Miscellaneous Provisions |
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75 |
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Section 9.06. Repayment to Issuers |
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76 |
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Section 9.07. Reinstatement |
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76 |
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Section 9.08. Discharge |
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76 |
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ARTICLE 10 AMENDMENT, SUPPLEMENT AND WAIVER |
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78 |
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Section 10.01. Without Consent of Holders of Notes |
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78 |
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Section 10.02. With Consent of Holders of Notes |
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79 |
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Section 10.03. Compliance with Trust Indenture Act |
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80 |
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Section 10.04. Revocation and Effect of Consents |
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80 |
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Section 10.05. Notation on or Exchange of Notes |
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81 |
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Section 10.06. Trustee to Sign Amendments, etc. |
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81 |
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ARTICLE 11 GUARANTEES OF NOTES |
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81 |
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Section 11.01. Subsidiary Guarantees |
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81 |
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Section 11.02. [Reserved] |
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82 |
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Section 11.03. Guarantors May Consolidate, etc., on Certain Terms |
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82 |
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Section 11.04. Releases of Subsidiary Guarantees |
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83 |
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Section 11.05. Notation of Subsidiary Guarantee |
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83 |
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Section 11.06. Limitation on Guarantor Liability |
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84 |
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Section 11.07. Trustee to Include Paying Agent |
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84 |
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ARTICLE 12 MISCELLANEOUS |
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84 |
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Section 12.01. Trust Indenture Act Controls |
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84 |
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Section 12.02. Notices |
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84 |
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Section 12.03. Communication by Holders of Notes with Other Holders of Notes |
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85 |
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Section 12.04. Certificate and Opinion as to Conditions Precedent |
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86 |
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Section 12.05. Statements Required in Certificate or Opinion |
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86 |
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Section 12.06. Rules by Trustee and Agents |
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86 |
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Section 12.07. No Personal Liability of Directors, Officers, Employees and Unitholders |
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86 |
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Section 12.08. Governing Law |
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87 |
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Section 12.09. No Adverse Interpretation of Other Agreements |
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87 |
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Section 12.10. Successors |
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87 |
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Section 12.11. Severability |
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87 |
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Section 12.12. Evidence of Action by Holders |
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87 |
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Section 12.13. Table of Contents, Headings, etc. |
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87 |
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Section 12.14. Counterparts |
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88 |
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iv
SCHEDULE AND EXHIBITS
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Schedule A Guarantors |
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Schedule A 1 |
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Form of Note |
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Exhibit A 1 |
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Form of Notation of Subsidiary Guarantee |
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Exhibit B 1 |
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Form of Supplemental Indenture |
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Exhibit C 1 |
v
THIS FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture) dated as of April 5, 2011 is
among Copano Energy, L.L.C., a Delaware limited liability company (the Company), Copano Energy
Finance Corporation, a Delaware corporation (Finance Corp., and together with the Company, the
Issuers), the Guarantors (as defined herein), listed on Schedule A hereto and U.S. Bank National
Association, a national banking association, as Trustee under the Senior Indenture (the Trustee),
dated the date hereof, among the Issuers, the Guarantors and the Trustee (the Base Indenture and,
as amended and supplemented by this Supplemental Indenture, in respect of the Notes, the
Indenture).
RECITALS
The Issuers, the Guarantors and the Trustee have duly authorized the execution and delivery of
the Base Indenture to provide for the issuance from time to time of the Issuers debentures, notes,
bonds or other evidences of indebtedness to be issued in one or more series unlimited as to
principal amount (herein called the Debt Securities), which Debt Securities may be guaranteed by
each of the Guarantors, as in the Indenture provided.
Section 9.01 of the Base Indenture provides, among other things, that the Issuers, the
Guarantors and the Trustee may enter into indentures supplemental to the Base Indenture, without
the consent of any Holders of Debt Securities, to establish the form or terms of any Debt Security
as permitted by Sections 2.01 and 2.03 of the Base Indenture.
Pursuant to Sections 2.01 and 2.03 of the Base Indenture, the Issuers desire to execute this
Supplemental Indenture to establish the form and terms, and to provide for the issuance, of a
series of senior notes designated as 7.125% Senior Notes due 2021 in an aggregate principal amount
of $360,000,000 (the Initial Notes).
From time to time subsequent to the Issue Date, the Issuers may, if permitted to do so
pursuant to the terms of the Indenture, the Initial Notes and the terms of their other indebtedness
existing on such future date, issue additional senior notes of the same series as the Initial Notes
in accordance with this Supplemental Indenture (the Additional Notes and, together with the
Initial Notes, the Notes), pursuant to this Supplemental Indenture.
The Issuers and the Guarantors are members of the same consolidated group of companies. The
Guarantors will derive direct and indirect economic benefit from the issuance of the Notes.
Accordingly, each Guarantor has duly authorized the execution and delivery of this Supplemental
Indenture to provide for its full, unconditional and joint and several Guarantee of the Notes to
the extent provided in or pursuant to the Indenture.
This Supplemental Indenture is subject to the provisions of the Trust Indenture Act of 1939,
as amended, that are required to be a part of this Supplemental Indenture and shall, to the extent
applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed by the Issuers and
authenticated and delivered hereunder and duly issued by the Issuers, the valid obligations of the
Issuers, and all things necessary have been done to make the Guarantees thereof, when the Notes
have been executed by the Issuers and authenticated and delivered hereunder and duly issued by the
Issuers, the valid obligations of the Guarantors.
1
All things necessary to make this Supplemental Indenture a valid agreement of each of the
Issuers and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH
The Issuers, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders of the Notes:
ARTICLE 1
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01. Application of this Supplemental Indenture.
Notwithstanding any other provision of this Supplemental Indenture, the provisions of this
Supplemental Indenture, including as provided in Section 1.02 below, are expressly and solely for
the benefit of the Holders of the Notes and the Guarantees and shall not apply to any other series
of Debt Securities that may be issued hereafter under the Base Indenture. The Notes constitute a
series of Debt Securities as provided in the Base Indenture. Unless otherwise expressly specified,
references in this Supplemental Indenture to specific Article numbers or Section numbers refer to
Articles and Sections contained in this Supplemental Indenture, and not the Base Indenture or any
other document.
Section 1.02. Effect of Supplemental Indenture.
With respect to the Notes (and any notation of Guarantee endorsed thereon) only, the Base
Indenture shall be supplemented and amended pursuant to Section 9.01 thereof to establish the form
and terms of the Notes (and any notation of Guarantee endorsed thereon) as set forth in this
Supplemental Indenture, including as follows:
(a) Definitions. Article I of the Base Indenture is deleted and replaced in its entirety by
the provisions of Article 2 of this Supplemental Indenture;
(b) Security Forms. Article II of the Base Indenture is deleted and replaced in its entirety
by the provisions of Article 3 of this Supplemental Indenture;
(c) Redemption. The provisions of Article III of the Base Indenture are deleted and replaced
in their entirety by the provisions of Article 4 of this Supplemental Indenture;
(d) Covenants. The provisions of Article IV of the Base Indenture are deleted and replaced in
their entirety by the provisions of Article 5 of this Supplemental Indenture;
(e) Holders Lists and Reports by Trustee. The provisions of Article V of the Base Indenture
are deleted in their entirety;
(f) Remedies of the Trustee and Holders in Event of Default. The provisions of Article VI of
the Base Indenture are deleted and replaced in their entirety by the provisions of Article 7 of
this Supplemental Indenture;
2
(g) The Trustee. The provisions of Article VII of the Base Indenture are deleted and replaced
in their entirety by the provisions of Article 8 of this Supplemental Indenture;
(h) The Holders. The provisions of Article VIII of the Base Indenture are deleted in their
entirety;
(i) Supplemental Indentures. The provisions of Article IX of the Base Indenture are deleted
and replaced in their entirety by the provisions of Article 10 of this Supplemental Indenture;
(j) Consolidation, Merger, Sale of Assets. The provisions of Article X of the Base Indenture
are deleted and replaced in their entirety by the provisions of Article 6 of this Supplemental
Indenture;
(k) Satisfaction and Discharge; Defeasance. The provisions of Article XI of the Base Indenture
are deleted and replaced in their entirety by the provisions of Article 9 of this Supplemental
Indenture;
(l) Guarantees. The provisions of Article XIV of the Base Indenture are deleted and replaced
in their entirety by the provisions of Article 11 of this Supplemental Indenture; and
(m) Miscellaneous. The provisions of Article XIII of the Base Indenture are deleted and
replaced in their entirety by the provisions of Article 12 of this Supplemental Indenture.
(n) Exhibits. Annex A of the Base Indenture is deleted and replaced in its entirety by
Exhibits A, B and C of this Supplemental Indenture.
To the extent that the provisions of this Supplemental Indenture (including those referred to
in clauses (a) through (n) above) conflict with any provision of the Base Indenture, the provisions
of this Supplemental Indenture shall govern and be controlling, solely with respect to the Notes
(and any notation of Guarantee endorsed thereon).
ARTICLE 2
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 2.01. Definitions.
Acquired Debt means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person was merged
with or into or became a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person, but excluding
Indebtedness which is extinguished, retired or repaid in connection with such Person merging
with or becoming a Subsidiary or such specified Person; and
3
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified
Person.
Additional Notes means, subject to the Companys compliance with Section 5.09, 7.125% Senior
Notes due 2021 issued from time to time after the Issue Date under the terms of this Indenture
(other than pursuant to Section 3.09, 3.14, 4.06, 4.09, 5.15 or 10.05 of this Indenture).
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For
purposes of this definition, control, as used with respect to any Person, means 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;
provided, however, that beneficial ownership of 10% or more of the Voting Stock of a Person will be
deemed to be control by the other Person; and further, that any third Person which also
beneficially owns 10% or more of the Voting Stock of a specified Person shall not be deemed to be
an Affiliate of either the specified Person or the other Person merely because of such common
ownership in such specified Person. For purposes of this definition, the terms controlling,
controlled by and under common control with have correlative meanings.
Agent means any Registrar or Paying Agent.
Applicable Law, except as the context may otherwise require, means all applicable laws,
rules, regulations, ordinances, judgments, decrees, injunctions, writs and orders of any court or
governmental or congressional agency or authority and rules, regulations, orders, licenses and
permits of any United States federal, state, municipal, regional, or other governmental body,
instrumentality, agency or authority.
Asset Sale means:
(1) the sale, lease, conveyance or other disposition of any properties or assets
(including by way of a sale and leaseback transaction); provided, however, that the
disposition of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by the provisions of Section 5.15
and/or the provisions of Section 6.01 and not by the provisions of Section 5.10; and
(2) the issuance of Equity Interests in any of the Companys Restricted Subsidiaries or
the sale of Equity Interests in any of its Restricted Subsidiaries.
Notwithstanding the preceding, the following items will not be deemed to be Asset Sales:
(1) any single transaction or series of related transactions that involves properties
or assets having a fair market value of less than $10.0 million;
(2) a transfer of assets between or among any of the Company and its Restricted
Subsidiaries,
4
(3) an issuance or sale of Equity Interests by a Restricted Subsidiary to the Company
or to another Restricted Subsidiary;
(4) the sale, lease or other disposition of equipment, inventory, accounts receivable
or other properties or assets in the ordinary course of business;
(5) the sale or other disposition of cash or Cash Equivalents, Hedging Contracts or
other financial instruments in the ordinary course of business;
(6) a Restricted Payment that is permitted by Section 5.07 or a Permitted Investment;
(7) any trade or exchange by the Company or any Restricted Subsidiary of properties or
assets for properties or assets owned or held by another Person, provided that the fair
market value of the properties or assets traded or exchanged by the Company or such
Restricted Subsidiary (together with any cash) is reasonably equivalent to the fair market
value of the properties or assets (together with any cash) to be received by the Company or
such Restricted Subsidiary, and provided further that any net cash received must be applied
in accordance with the provisions of Section 5.10;
(8) the creation or perfection of a Lien that is not prohibited by Section 5.12;
(9) dispositions in connection with Permitted Liens;
(10) surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind; and
(11) the grant in the ordinary course of business of any non-exclusive license of
patents, trademarks, registrations therefor and other similar intellectual property.
Attributable Debt in respect of a sale and leaseback transaction means, at the time of
determination, the present value of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of interest implicit in
such transaction, determined in accordance with GAAP. As used in the preceding sentence, the net
rental payments under any lease for any such period shall mean the sum of rental and other
payments required to be paid with respect to such period by the lessee thereunder, excluding any
amounts required to be paid by such lessee on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges. In the case of any lease that is terminable by the
lessee upon payment of penalty, such net rental payment shall also include the amount of such
penalty, 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.
Available Cash has the meaning assigned to such term in the LLC Agreement, as in effect on
the date of this Indenture.
5
Bankruptcy Law means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.
Beneficial Owner has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under
the Exchange Act, except that in calculating the beneficial ownership of any particular person
(as that term is used in Section 13(d)(3) of the Exchange Act), such person will be deemed to
have beneficial ownership of all securities that such person has the right to acquire by
conversion or exercise of other securities, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms Beneficially Owns and
Beneficially Owned have correlative meanings.
Board of Directors means:
(1) with respect to Finance Corp., the board of directors of the corporation;
(2) with respect to the Company, the board of directors of the Company or any
authorized committee thereof; and
(3) with respect to any other Person, the board or committee of such Person serving a
similar function.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the applicable Person to have been duly adopted by the Board of Directors of such
Person and to be in full force and effect on the date of such certification, and delivered to the
Trustee.
Business Day means each day that is not a Saturday, Sunday or other day on which banking
institutions in Houston, Texas or in New York, New York or another place of payment are authorized
or required by law to close.
Capital Lease Obligation means, at the time any determination is to be made, the amount of
the liability in respect of a capital lease that would at that time be required to be capitalized
on a balance sheet in accordance with GAAP.
Capital Stock means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate stock;
(3) in the case of a partnership or limited liability company, partnership (whether
general or limited) or membership interests; and
(4) 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, the issuing Person.
6
Cash Equivalents means:
(1) United States dollars;
(2) securities issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality of the United States government (provided that
the full faith and credit of the United States is pledged in support of those securities)
having maturities of not more than six months from the date of acquisition;
(3) certificates of deposit and eurodollar time deposits with maturities of one year or
less from the date of acquisition, bankers acceptances with maturities not exceeding one
year and overnight bank deposits, in each case, with any lender party to the Credit
Agreement or with any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thomson Bank Watch Rating of B or better;
(4) repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above;
(5) commercial paper having the highest rating obtainable from Moodys or S&P and in
each case maturing within six months after the date of acquisition; and
(6) money market funds at least 95% of the assets of which constitute Cash Equivalents
of the kinds described in clauses (1) through (5) of this definition.
Certificated Note means a Note in certificated form registered in the name of the Holder
thereof and issued in substantially the form of Exhibit A hereto, which Note will not bear the
legend set forth in Section 3.02 hereof and will not have the Schedule of Increases or Decreases
in Global Note attached thereto.
Change of Control means the occurrence of any of the following:
(1) the direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related transactions,
of all or substantially all of the properties or assets (including Capital Stock of the
Restricted Subsidiaries) of the Company and its Restricted Subsidiaries taken as a whole, to
any person (as that term is used in Section 13(d)(3) of the Exchange Act), which
occurrence is followed by a Rating Decline within 90 days of the consummation of such
transaction;
(2) the adoption of a plan relating to the liquidation or dissolution of the Company;
(3) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any person (as that term is used in Section
13(d)(3) of the Exchange Act) becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Company, measured by voting
7
power rather than number of shares, units or the like, which occurrence is followed by
a Rating Decline within 90 days thereof; or
(4) the first day on which a majority of the members of the Board of Directors of the
Company are not Continuing Directors, which occurrence is followed by a Rating Decline
within 90 days thereof.
Notwithstanding the preceding, a conversion of the Company or any of its Restricted
Subsidiaries from a limited liability company, corporation, limited partnership or other form of
entity to a limited liability company, corporation, limited partnership or other form of entity or
an exchange of all of the outstanding Equity Interests in one form of entity for Equity Interests
for another form of entity shall not constitute a Change of Control, so long as following such
conversion or exchange the persons (as that term is used in Section 13(d)(3) of the Exchange Act)
who Beneficially Owned the Capital Stock of the Company immediately prior to such transactions
continue to Beneficially Own in the aggregate more than 50% of the Voting Stock of such entity, or
continue to Beneficially Own sufficient Equity Interests in such entity to elect a majority of its
directors, managers, trustees or other persons serving in a similar capacity for such entity, and,
in either case no person Beneficially Owns more than 50% of the Voting Stock of such entity.
Code means the Internal Revenue Code of 1986, as amended from time to time, and any
successor statute.
Commission or SEC means the Securities and Exchange Commission.
Consolidated Cash Flow means, with respect to any specified Person for any period, the
Consolidated Net Income of such Person for such period plus:
(1) an amount equal to any net loss realized by such Person or any of its Restricted
Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in
computing such Consolidated Net Income; plus
(2) provision for taxes based on income or profits of such Person and its Restricted
Subsidiaries for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(3) consolidated interest expense of such Person and its Restricted Subsidiaries for
such period, whether paid or accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers acceptance financings), and net of the effect of all
payments made or received pursuant to interest rate Hedging Contracts, to the extent that
any such expense was deducted in computing such Consolidated Net Income; plus
8
(4) depreciation and amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period), impairment and
other non-cash expenses (excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any future period or amortization
of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period to the extent that such depreciation and amortization,
impairment and other non-cash expenses were deducted in computing such Consolidated Net
Income; plus
(5) unrealized non-cash losses resulting from foreign currency balance sheet
adjustments required by GAAP to the extent such losses were deducted in computing such
Consolidated Net Income; plus
(6) all extraordinary, unusual or non-recurring items of gain or loss, or revenue or
expense; minus
(7) non-cash items increasing such Consolidated Net Income for such period, other than
items that were accrued in the ordinary course of business;
in each case, on a consolidated basis and determined in accordance with GAAP.
Consolidated Net Income means, with respect to any specified Person for any period, the
aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP, provided that:
(1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included, but only to the
extent of the amount of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the
declaration or payment of dividends or similar distributions by that Restricted Subsidiary
of that Net Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any judgment, decree, order, statute, rule or governmental
regulation applicable to that Restricted Subsidiary or its stockholders, partners or
members;
(3) the cumulative effect of a change in accounting principles will be excluded;
(4) unrealized losses and gains under derivative instruments included in the
determination of Consolidated Net Income, including, without limitation those resulting from
the application of Financial Accounting Standards Board (FASB) Accounting Standards
Codification (ASC) 815 will be excluded; and
9
(5) any nonrecurring charges relating to any premium or penalty paid, write off of
deferred finance costs or other charges in connection with redeeming or retiring any
Indebtedness prior to its Stated Maturity will be excluded.
Consolidated Net Tangible Assets means, with respect to any Person at any date of
determination, the aggregate amount of total assets included in such Persons most recent quarterly
or annual consolidated balance sheet prepared in accordance with GAAP less applicable reserves
reflected in such balance sheet, after deducting the following amounts: (a) all current
liabilities reflected in such balance sheet, and (b) all goodwill, trademarks, patents, unamortized
debt discounts and expenses and other like intangibles reflected in such balance sheet.
Continuing Directors means, as of any date of determination, any member of the Board of
Directors of the Company who:
(1) was a member of such Board of Directors on the date of this Indenture; or
(2) was nominated for election or elected to such Board of Directors with the approval
of a majority of the Continuing Directors who were members of such Board at the time of such
nomination or election.
Corporate Trust Office of the Trustee means the office of the Trustee in the City of New
York at which at any time its corporate trust business shall be administered, which office at the
date hereof is located at 100 Wall Street, Suite 1600, New York, New York 10005, Attn: Corporate
Trust Department, or such other address in the City of New York as the Trustee may designate from
time to time by notice to the Holders and the Issuers, or the principal corporate trust office in
the City of New York of any successor Trustee (or such other address as a successor Trustee may
designate from time to time by notice to the Holders and the Issuers).
Credit Agreement means that certain Amended and Restated Credit Agreement, dated as of
January 12, 2007, among the Company, Bank of America, N.A., as Administrative Agent and L/C Issuer,
and the other lenders party thereto, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case as amended, restated,
modified, renewed, refunded, replaced or refinanced from time to time.
Credit Facilities means one or more debt facilities (including, without limitation, the
Credit Agreement), commercial paper facilities or secured capital markets financings, in each case
with banks or other institutional lenders or institutional investors providing for revolving credit
loans, term loans, receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such receivables),
letters of credit or secured capital markets financings, in each case, as amended, restated,
modified, renewed, refunded, replaced or refinanced (including refinancing with any capital markets
transaction) in whole or in part from time to time.
Custodian means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
10
Default means any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.
Depository means, with respect to any Global Note, the Person specified in Section 3.06
hereof as the Depository with respect to such Global Note, and any successor thereto appointed as
depository hereunder.
Disqualified Stock means any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each case at the option
of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the
holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the
date on which the Notes mature. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Stock solely because the holders of the Capital Stock have the right
to require the Company to repurchase or redeem such Capital Stock upon the occurrence of a change
of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital
Stock provide that the Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with Section 5.07.
Domestic Subsidiary means any Restricted Subsidiary of the Company that was formed under the
laws of the United States or any state of the United States or the District of Columbia.
Equity Interests means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or exchangeable for,
Capital Stock).
Equity Investee means each of Webb/Duval Gatherers, Southern Dome, LLC, Bighorn Gas
Gathering, L.L.C., Fort Union Gas Gathering, L.L.C., Eagle Ford Gathering LLC and Liberty Pipeline
Group, LLC.
Equity Offering means any public or private sale of Capital Stock (other than Disqualified
Stock) made for cash on a primary basis by the Company after the date of this Indenture, provided
that at any time on or after a Change of Control, any sale of Capital Stock to an Affiliate of the
Company shall not be deemed an Equity Offering.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Existing Indebtedness means the aggregate principal amount of Indebtedness of the Company
and its Restricted Subsidiaries (other than Indebtedness under the Credit Agreement which is
considered incurred under the first paragraph of Section 5.09 and other than intercompany
Indebtedness) in existence on the date of this Indenture, until such amounts are repaid.
FERC Subsidiary means a Restricted Subsidiary of the Company that is subject to the
regulatory jurisdiction of the Federal Energy Regulatory Commission (or any successor thereof).
Fixed Charge Coverage Ratio means with respect to any specified Person for any four-quarter
reference period, the ratio of the Consolidated Cash Flow of such Person for such period
11
to the Fixed Charges of such Person for such period. In the event that the specified Person
or any of its Restricted Subsidiaries incurs, assumes, guarantees, repays, repurchases or redeems
any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems
preferred stock subsequent to the commencement of the applicable four-quarter reference period and
on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage
Ratio is made (the Calculation Date), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, assumption, guarantee, repayment, repurchase or
redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the
use of the proceeds therefrom as if the same had occurred at the beginning of such period.
In addition, for purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made by the specified Person or any of its Restricted
Subsidiaries, including through mergers, consolidations or otherwise (including acquisitions
of assets used in a Permitted Business), and including in each case any related financing
transactions (including repayment of Indebtedness) during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date, will be
given pro forma effect as if they had occurred on the first day of the four-quarter
reference period, including any Consolidated Cash Flow and any pro forma expense and cost
reductions that have occurred or are reasonably expected to occur, in the reasonable
judgment of the chief financial or accounting officer of the Company (regardless of whether
those cost savings or operating improvements could then be reflected in pro forma financial
statements in accordance with Regulation S-X promulgated under the Securities Act or any
other regulation or policy of the Commission related thereto);
(2) the Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded;
(3) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the Calculation
Date, will be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the specified Person or any of its Restricted
Subsidiaries following the Calculation Date; and
(4) interest income reasonably anticipated by such Person to be received during the
applicable four-quarter period from cash or Cash Equivalents held by such Person or any
Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on the
Calculation Date or will exist as a result of the transaction giving rise to the need to
calculate the Fixed Charge Coverage Ratio, will be included.
12
Fixed Charges means, with respect to any specified Person for any period, the sum, without
duplication, of:
(1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including, without limitation, amortization of
debt issuance costs and original issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of letter of
credit or bankers acceptance financings), and net of the effect of all payments made or
received pursuant to interest rate Hedging Contracts; plus
(2) the consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus
(3) any interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries, whether or not such guarantee or Lien is called upon;
plus
(4) all dividends on any series of Disqualified Stock of such Person or any series of
preferred securities of its Restricted Subsidiaries, whether paid or accrued and whether or
not in cash, other than dividends on Equity Interests payable solely in Equity Interests of
the payor (other than Disqualified Stock) or to such Person or a Restricted Subsidiary of
such Person,
in each case, on a consolidated basis and in accordance with GAAP.
Foreign Subsidiary means any Restricted Subsidiary of the Company that (a) is not a Domestic
Subsidiary and (b) has 50% or more of its consolidated assets located outside the United States or
any territory thereof.
GAAP means generally accepted accounting principles in the United States which are in effect
on the date of this Indenture.
Global Note means a Note in permanent global form registered in the name of the Depository
or its nominee and issued in substantially the form of Exhibit A hereto, containing the legend set
forth in Section 3.02 hereof and having the Schedule of Increases or Decreases in Global Note
attached thereto.
Government Securities means direct obligations of, or obligations guaranteed by, the United
States of America for the payment of which guarantee or obligations the full faith and credit of
the United States is pledged.
The term 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
13
reimbursement agreements in respect thereof, of all or any part of any Indebtedness. When
used as a verb, guarantee has a correlative meaning.
Guarantors means each of (a) the Subsidiaries of the Company, other than Finance Corp.,
executing this Indenture as initial Guarantors, (b) any other Restricted Subsidiary of the Company
that executes a supplement to this Indenture in accordance with Section 5.13 or 11.03 hereof and
(c) the respective successors and assigns of such Restricted Subsidiaries, as required under
Article 11 hereof, in each case until such time as any such Restricted Subsidiary shall be released
and relieved of its obligations pursuant to Section 9.02, 9.03 or 11.04 hereof.
Hedging Contracts means, with respect to any specified Person:
(1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements entered into with one or more financial institutions and designed to
protect the Person or any of its Restricted Subsidiaries entering into the agreement against
fluctuations in interest rates with respect to Indebtedness incurred and not for purposes of
speculation;
(2) foreign exchange contracts and currency protection agreements entered into with one
of more financial institutions and designed to protect the Person or any of its Restricted
Subsidiaries entering into the agreement against fluctuations in currency exchanges rates
with respect to Indebtedness incurred;
(3) any commodity futures contract, commodity option or other similar agreement or
arrangement designed to protect against fluctuations in the price of Hydrocarbons used,
produced, processed or sold by that Person or any of its Restricted Subsidiaries at the
time; and
(4) other agreements or arrangements designed to protect such Person or any of its
Restricted Subsidiaries against fluctuations in interest rates, commodity prices or currency
exchange rates,
and in each case are entered into only in the normal course of business and not for speculative
purposes.
Holder, Noteholder or Holder of Debt Securities means a Person in whose name a Note is
registered.
Hydrocarbons means crude oil, natural gas, casinghead gas, drip gasoline, natural gasoline,
condensate, distillate, liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or
compounds thereof and products refined or processed therefrom.
Indebtedness means, with respect to any specified Person, any indebtedness of such Person,
whether or not contingent:
(1) in respect of borrowed money;
14
(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit
(or reimbursement agreements in respect thereof);
(3) in respect of bankers acceptances;
(4) representing Capital Lease Obligations;
(5) representing the balance deferred and unpaid of the purchase price of any property,
except any such balance that constitutes an accrued expense or trade payable; or
(6) representing any obligations under Hedging Contracts,
if and to the extent any of the preceding items (other than letters of credit and obligations under
Hedging Contracts) would appear as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term Indebtedness includes all Indebtedness
of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness
is assumed by the specified Person) and, to the extent not otherwise included, the guarantee by the
specified Person of any Indebtedness of any other Person. For the avoidance of doubt, the term
Indebtedness excludes any obligation arising from any agreement providing for indemnities,
purchase price adjustments, holdbacks, contingency payment obligations based on the performance of
the acquired or disposed assets or similar obligations (other than guarantees of Indebtedness)
incurred by the specified Person in connection with the acquisition or disposition of assets.
The amount of any Indebtedness outstanding as of any date will be:
(1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;
(2) in the case of obligations under any Hedging Contracts, the termination value of
the agreement or arrangement giving rise to such obligations that would be payable by such
Person at such date; and
(3) the principal amount of the Indebtedness, together with any interest on the
Indebtedness that is more than 30 days past due, in the case of any other Indebtedness.
Interest Payment Date means each April 1 and October 1, beginning October 1, 2011.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by
Moodys and BBB- (or the equivalent) by S&P.
Investments means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including guarantees or other
obligations), advances or capital contributions (excluding (1) commission, travel and similar
advances to officers and employees made in the ordinary course of business and (2) advances to
customers in the ordinary course of business that are recorded as accounts receivable on the
balance sheet of the lender), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities, together with all items that are or would be
15
classified as investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any Equity Interests of
any direct or indirect Restricted Subsidiary of the Company such that, after giving effect to any
such sale or disposition, such Person is no longer a Restricted Subsidiary of the Company, the
Company will be deemed to have made an Investment on the date of any such sale or disposition in an
amount equal to the fair market value of the Equity Interests of such Restricted Subsidiary not
sold or disposed of in an amount determined as provided in the final paragraph of Section 5.07.
The acquisition by the Company or any Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment made by the Company or such
Subsidiary in such third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person on the date of any such acquisition in an amount
determined as provided in the final paragraph of Section 5.07.
Issue Date means April 5, 2011.
Issuer Order means a written request or order signed on behalf of each Issuer by an Officer
thereof and delivered to the Trustee.
Joint Venture means any Person that is not a direct or indirect Subsidiary of the Company in
which the Company or any of its Restricted Subsidiaries makes any Investment.
Lien means, with respect to any asset, any mortgage, lien, pledge, charge, security interest
or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise
perfected under Applicable Law, including any conditional sale or other title retention agreement,
any lease in the nature thereof, any option or other agreement to sell or give a security interest
in and any filing of or agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction other than a precautionary financing statement
respecting a lease not intended as a security agreement.
LLC Agreement means the Fourth Amended and Restated Limited Liability Company Agreement of
Copano Energy, L.L.C., dated as of July 20, 2010, as amended by Amendment No. 1 dated July 21,
2010, as in effect on the date of this Indenture and as such may be further amended, modified or
supplemented from time to time.
Make Whole Premium means, with respect to a Note at any time, the excess, if any, of (a) the
present value at such time of (i) the redemption price of such Note at April 1, 2016, pursuant to
Section 4.07(a) plus (ii) any required interest payments due on such Note through April 1, 2016
(except for currently accrued and unpaid interest), computed using a discount rate equal to the
Treasury Rate plus 50 basis points, discounted to the redemption date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), over (b) the principal amount of
such Note.
Moodys means Moodys Investors Service, Inc. or any successor to the rating agency business
thereof.
16
Net Income means, with respect to any specified Person, the net income (loss) of such
Person, determined in accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:
(1) any gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of
any securities by such Person or the extinguishment of any Indebtedness of such Person; and
(2) any extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).
Net Proceeds means the aggregate cash proceeds received by the Company or any of its
Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration received in any Asset
Sale), net of:
(1) the direct costs relating to such Asset Sale, including, without limitation, legal,
accounting and investment banking fees, and sales commissions, and any relocation expenses
incurred as a result of the Asset Sale,
(2) taxes paid or payable as a result of the Asset Sale, in each case, after taking
into account any available tax credits or deductions and any tax sharing arrangements,
(3) amounts required to be applied to the repayment of Indebtedness secured by a Lien
on the properties or assets that were the subject of such Asset Sale, and
(4) any amounts to be set aside in any reserve established in accordance with GAAP or
any amount placed in escrow, in either case for adjustment in respect of the sale price of
such properties or assets or for liabilities associated with such Asset Sale and retained by
the Company or any of its Restricted Subsidiaries until such time as such reserve is
reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include
only the amount of the reserve so reversed or the amount returned to the Company or its
Restricted Subsidiaries from such escrow arrangement, as the case may be.
Non-Recourse Debt means Indebtedness:
(1) as to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) is the lender;
(2) no default with respect to which (including any rights that the holders of the
Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would
permit upon notice, lapse of time or both any holder of any other Indebtedness (other than
the Notes) of the Company or any of its Restricted Subsidiaries
17
to declare a default on such other Indebtedness or cause the payment of the
Indebtedness to be accelerated or payable prior to its Stated Maturity; and
(3) as to which the lenders have been notified in writing that they will not have any
recourse to the Capital Stock or assets of the Company or any of its Restricted Subsidiaries
except as contemplated by clause (9) of the definition of Permitted Liens.
For purposes of determining compliance with Section 5.09, in the event that any Non-Recourse
Debt of any of the Companys Unrestricted Subsidiaries ceases to be Non-Recourse Debt of such
Unrestricted Subsidiary, such event will be deemed to constitute an incurrence of Indebtedness by a
Restricted Subsidiary of the Company.
Notes Custodian means the custodian with respect to a Global Note appointed by the
Depository or any successor thereof. Initially, the Notes Custodian is the Trustee.
Obligations means any principal, premium, if any, interest (including interest accruing on
or after the filing of any petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges, expenses,
indemnifications, reimbursement obligations, damages, guarantees, and other liabilities or amounts
payable under the documentation governing any Indebtedness or in respect thereto.
Officer means, with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any Vice
President, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Assistant
Secretary of such Person (or, if such Person is a limited partnership, the general partner of such
Person).
Officers Certificate means a certificate signed on behalf of each of the Company and
Finance Corp. by two of its Officers, one of whom must be the principal executive officer, the
principal financial officer, the treasurer or the principal accounting officer of the Company or
Finance Corp., as the case may be, that meets the requirements of Section 12.05 hereof.
Operating Surplus has the meaning assigned to such term in the LLC Agreement, as in effect
on the date of this Indenture.
Opinion of Counsel means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
Pari Passu Indebtedness means, with respect to any Excess Proceeds from Asset Sales,
Indebtedness of an Issuer or any Guarantor that ranks equally in right of payment with the Notes or
the Subsidiary Guarantees, as the case may be, and the terms of which require the Company or any of
its Restricted Subsidiaries to apply such Excess Proceeds to offer to repurchase such Indebtedness.
Permitted Business means either (1) gathering, transporting, treating, processing,
marketing, distributing, storing or otherwise handling Hydrocarbons, or activities or services
reasonably related or ancillary thereto including entering into Hedging Contracts to support these
18
businesses, or (2) any other business that generates gross income that constitutes qualifying
income under Section 7704(d) of the Code.
Permitted Business Investments means Investments by the Company or any of its Restricted
Subsidiaries in any Unrestricted Subsidiary of the Company or in any Joint Venture, provided that:
(1) either (a) at the time of such Investment and immediately thereafter, the Company
could incur $1.00 of additional Indebtedness under the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 5.09 or (b) such Investment does not exceed the
aggregate amount of Incremental Funds (as defined in Section 5.09) not previously expended
at the time of making such Investment;
(2) if such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at
the time of such Investment, either (a) all such Indebtedness is Non-Recourse Debt or (b)
any such Indebtedness of such Unrestricted Subsidiary or Joint Venture that is recourse to
the Company or any of its Restricted Subsidiaries (which shall include, without limitation,
all Indebtedness of such Unrestricted Subsidiary or Joint Venture for which the Company or
any of its Restricted Subsidiaries may be directly or indirectly, contingently or otherwise,
obligated to pay, whether pursuant to the terms of such Indebtedness, by law or pursuant to
any guarantee ,including, without limitation, any claw-back, make-well or keep-well
arrangement) could, at the time such Investment is made, be incurred at that time by the
Company and its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set forth
in the first paragraph of Section 5.09; and
(3) such Unrestricted Subsidiarys or Joint Ventures activities are not outside the
scope of the Permitted Business.
Permitted Investments means:
(1) any Investment in the Company or in a Restricted Subsidiary of the Company;
(2) any Investment in Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of the Company in a
Person, if as a result of such Investment:
(a) such Person becomes a Restricted Subsidiary of the Company; or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its properties or assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company;
19
(4) any Investment made as a result of the receipt of non-cash consideration from:
(a) an Asset Sale that was made pursuant to and in compliance with Section
5.10;
(b) pursuant to clause (7) of the items deemed not to be Asset Sales under the
definition of Asset Sale;
(5) any Investment in any Person solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;
(6) any Investments received in compromise of obligations of trade creditors or
customers that were incurred in the ordinary course of business, including pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade
creditor or customer, or as a result of a foreclosure by the Company or any of its
Restricted Subsidiaries with respect to any secured Investment in default;
(7) Hedging Contracts;
(8) Permitted Business Investments; and
(9) other Investments in any Person having an aggregate fair market value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value), when taken together with all other Investments made pursuant to this clause (9) that
are at the time outstanding, not to exceed the greater of $80.0 million or 5.0% of the
Companys Consolidated Net Tangible Assets.
Permitted Liens means:
(1) Liens securing any Indebtedness under any of the Credit Facilities;
(2) Liens in favor of the Company or the Guarantors;
(3) Liens on property of a Person existing at the time such Person is merged with or
into or consolidated with the Company or any Restricted Subsidiary of the Company, provided
that such Liens were in existence prior to the contemplation of such merger or consolidation
and do not extend to any assets other than those of the Person merged into or consolidated
with the Company or the Restricted Subsidiary;
(4) Liens on property existing at the time of acquisition of the property by the
Company or any Restricted Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition;
(5) any interest or title of a lessor to the property subject to a Capital Lease
Obligation;
20
(6) Liens on any property or asset acquired, constructed or improved by the Company or
any of its Restricted Subsidiaries (a Purchase Money Lien), which (a) are in favor of the
seller of such property or assets, in favor of the Person developing, constructing,
repairing or improving such asset or property, or in favor of the Person that provided the
funding for the acquisition, development, construction, repair or improvement cost, as the
case may be, of such asset or property, (b) are created within 360 days after the
acquisition, development, construction, repair or improvement, (c) secure the purchase price
or development, construction, repair or improvement cost, as the case may be, of such asset
or property in an amount up to 100% of the fair market value (as determined by the Board of
Directors of the Company if such fair market value is $15.0 million or more) of such
acquisition, construction or improvement of such asset or property, and (d) are limited to
the asset or property so acquired, constructed or improved (including the proceeds thereof,
accessions thereto and upgrades thereof);
(7) Liens existing on the date of this Indenture other than Liens securing the Credit
Facilities;
(8) Liens to secure the performance of tenders, bids, statutory obligations, surety or
appeal bonds, government contracts, performance bonds or other obligations of a like nature
incurred in the ordinary course of business;
(9) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any
Joint Venture owned by the Company or any Restricted Subsidiary of the Company to the extent
securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Joint
Venture;
(10) Liens on pipelines or pipeline facilities that arise by operation of law;
(11) Liens arising under operating agreements, joint venture agreements, partnership
agreements, oil and gas leases, farmout agreements, division orders, contracts for sale,
transportation or exchange of crude oil and natural gas, unitization and pooling
declarations and agreements, area of mutual interest agreements and other agreements arising
in the ordinary course of business of the Company and its Restricted Subsidiaries that are
customary in the Permitted Business;
(12) Liens upon specific items of inventory, receivables or other goods or proceeds of
the Company or any of its Restricted Subsidiaries securing such Persons obligations in
respect of bankers acceptances or receivables securitizations issued or created for the
account of such Person to facilitate the purchase, shipment or storage of such inventory,
receivables or other goods or proceeds and permitted by Section 5.09;
(13) Liens securing Obligations of the Issuers or any Guarantor under the Notes or the
Subsidiary Guarantees, as the case may be;
(14) Liens securing any Indebtedness equally and ratably with all Obligations due under
the Notes or any Subsidiary Guarantee pursuant to a contractual covenant that limits Liens
in a manner substantially similar to Section 5.12;
21
(15) Liens to secure performance of Hedging Contracts of the Company or any of
its Restricted Subsidiaries;
(16) Liens incurred by the Company or any Restricted Subsidiary of the Company,
provided that, after giving effect to any such incurrence, the aggregate principal amount of
all Indebtedness then outstanding and secured by any Liens incurred pursuant to this clause
(16) does not exceed the greater of $60.0 million or 3.5% of the Companys Consolidated Net
Tangible Assets; and
(17) any Lien renewing, extending, refinancing or refunding a Lien permitted by clauses
(1) through (15) above, provided that (a) the principal amount of the Indebtedness secured
by such Lien is not increased (except by an amount equal to a reasonable premium or other
reasonable amount paid, and fees and expenses reasonably incurred, in connection therewith)
and (b) no assets encumbered by any such Lien other than the assets permitted to be
encumbered immediately prior to such renewal, extension, refinance or refund are encumbered
thereby.
After termination of the covenants referred to in the first paragraph of Section 5.19, for
purposes of complying with Section 5.12, the Liens described in clauses (1) and (16) of this
definition of Permitted Liens will be Permitted Liens only to the extent those Liens secure
Indebtedness not exceeding, at the time of determination, 10% of the Consolidated Net Tangible
Assets of the Company. Once effective, this 10% limitation on Permitted Liens will continue to
apply during any later period in which the Notes do not have an Investment Grade Rating by both S&P
and Moodys.
Permitted Refinancing Indebtedness means any Indebtedness of the Company or any of its
Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries (other than intercompany Indebtedness); provided that:
(1) the principal amount of such Permitted Refinancing Indebtedness does not exceed the
principal amount of the Indebtedness being extended, refinanced, renewed, replaced, defeased
or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses
and premiums incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded;
(3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes or the Subsidiary Guarantees, such
Permitted Refinancing Indebtedness is subordinated in right of payment to the Notes or the
Subsidiary Guarantees on terms at least as favorable to the Noteholders as those contained
in the documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and
22
(4) such Indebtedness is not incurred (other than by way of a guarantee) by a
Restricted Subsidiary of the Company if the Company is the issuer or primary obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded.
Notwithstanding the preceding, any Indebtedness incurred under Credit Facilities pursuant to
Section 5.09 shall be subject only to the refinancing provision in the definition of Credit
Facilities and not pursuant to the requirements set forth in the definition of Permitted
Refinancing Indebtedness.
Person means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.
Prospectus means the prospectus of the Issuers dated March 22, 2011 relating to the offering
of the Initial Notes.
Rating Category means:
(1) with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); and
(2) with respect to Moodys, any of the following categories: Aaa, Aa, A, Baa, Ba, B,
Caa, Ca, C and D (or equivalent successor categories).
Rating Decline means a decrease in the rating of the Notes by either Moodys or S&P by one
or more gradations (including gradations within Rating Categories as well as between Rating
Categories). In determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories, namely + or for S&P, and 1, 2, and 3 for
Moodys, will be taken into account; for example, in the case of S&P, a rating decline either from
BB+ to BB or BB- to B+ will constitute a decrease of one gradation.
Reporting Default means a Default described in Section 7.01(d).
Responsible Officer, when used with respect to the Trustee, means any officer within the
corporate trust department of the Trustee having direct responsibility for the administration of
this Indenture.
Restricted Investment means an Investment other than a Permitted Investment.
Restricted Subsidiary of a Person means any Subsidiary of the referent Person that is not an
Unrestricted Subsidiary. Notwithstanding anything in this Indenture to the contrary, Finance Corp.
shall be a Restricted Subsidiary of the Company.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.,
or any successor to the rating agency business thereof.
Sale and Leaseback Transaction means an arrangement relating to property owned by the
Company or a Restricted Subsidiary on the Issue Date or thereafter acquired by the Company
23
or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such
property to a Person and the Company or a Restricted Subsidiary leases it from such Person.
SEC or Commission means the Securities and Exchange Commission.
Securities Act means the Securities Act of 1933, as amended.
Senior Debt means
(1) all Indebtedness of the Company or any of its Restricted Subsidiaries outstanding
under Credit Facilities and all obligations under Hedging Contracts with respect thereto;
(2) any other Indebtedness of the Company or any of its Restricted Subsidiaries
permitted to be incurred under the terms of this Indenture, unless the instrument under
which such Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Notes or any Subsidiary Guarantee; and
(3) all Obligations with respect to the items listed in the preceding clauses (1) and
(2).
Notwithstanding anything to the contrary in the preceding sentence, Senior Debt will not
include:
|
(a) |
|
any intercompany Indebtedness of the Company or any of its Restricted
Subsidiaries to the Company or any of its Affiliates; or |
|
|
(b) |
|
any Indebtedness that is incurred in violation of this Indenture. |
For the avoidance of doubt, Senior Debt will not include any trade payables or taxes owed or
owing by the Company or any Restricted Subsidiary.
Significant Subsidiary means any Subsidiary that would be a significant subsidiary as
defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as
such Regulation is in effect on the date of this Indenture.
Stated Maturity means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which the payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and will not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
Subsidiary means, with respect to any specified Person:
(1) any corporation, association or other business entity (other than a partnership or
limited liability company) of which more than 50% of the total voting power of Voting Stock
is at the time owned or controlled, directly or indirectly, by that
24
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof); and
(2) any partnership (whether general or limited) or limited liability company (a) the
sole general partner or member of which is such Person or a Subsidiary of such Person, or
(b) if there is more than a single general partner or member, either (x) the only managing
general partners or managing members of which are such Person or one or more Subsidiaries of
such Person (or any combination thereof) or (y) such Person owns or controls, directly or
indirectly, a majority of the outstanding general partner interests, member interests or
other Voting Stock of such partnership or limited liability company, respectively, plus in
the case of both subclauses (x) and (y) of this clause (b) such Person consolidates the
financial results of such partnership or limited liability company with its own financial
results in accordance with GAAP.
Subsidiary Guarantees means the joint and several guarantees issued by all of the Guarantors
pursuant to Article 11 hereof.
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) and the rules and
regulations thereunder, as in effect on the date on which this Indenture is qualified under the TIA
(except as provided in Section 10.01(i) and 10.03 hereof).
Treasury Rate means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15(519) which has become publicly available at least two Business
Days prior to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar market data)) most nearly equal to the period
from the redemption date to April 1, 2016; provided, however, that if such period is not equal to
the constant maturity of a United States Treasury security for which a weekly average yield is
given, the Company shall obtain the Treasury Rate by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States Treasury securities
for which such yields are given, except that if the period from the redemption date to April 1,
2016 is less than one year, the weekly average yield on actually traded United States Treasury
securities adjusted to a constant maturity of one year shall be used. The Company will (a)
calculate the Treasury Rate on the second Business Day preceding the applicable redemption date and
(b) prior to such redemption date file with the Trustee an Officers Certificate setting forth the
Make Whole Premium and the Treasury Rate and showing the calculation of each in reasonable detail.
Trustee means the party named as such above until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
2006 Indenture means the Indenture, dated as of February 7, 2006, relating to the 8.125%
Senior Notes due 2016 of the Issuers, as amended or supplemented from time to time.
Uniform Commercial Code means the New York Uniform Commercial Code as in effect from time to
time.
25
Unrestricted Subsidiary means any Subsidiary of the Company (other than Finance Corp.) that
is designated by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant to a
Board Resolution, but only to the extent that such Subsidiary:
(1) except to the extent permitted by subclause (2)(b) of the definition of Permitted
Business Investments, has no Indebtedness other than Non-Recourse Debt owing to any Person
other than the Company or any of its Restricted Subsidiaries;
(2) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons who are not
Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity
Interests or (b) to maintain or preserve such Persons financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced
to the Trustee by filing with the Trustee a Board Resolution giving effect to such designation and
an Officers Certificate certifying that such designation complied with the preceding conditions
and was permitted by Section 5.07. If, at any time, any Unrestricted Subsidiary would fail to meet
the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary will
be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such
Indebtedness is not permitted to be incurred as of such date under Section 5.09, the Company will
be in default of such covenant.
All Subsidiaries of an Unrestricted Subsidiary shall also be Unrestricted Subsidiaries.
Voting Stock of any Person as of any date means the Capital Stock of such Person that is at
the time entitled (without regard to the occurrence of any contingency) to vote in the election of
the Board of Directors of such Person.
Weighted Average Life to Maturity means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:
(1) the sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect of the Indebtedness, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between such date
and the making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
26
Section 2.02. Other Definitions.
|
|
|
|
|
Term |
|
Defined in Section |
Additional Notes: |
|
Recitals |
Affiliate Transaction |
|
|
5.11 |
|
Asset Sale Offer |
|
|
4.09 |
|
Change of Control Offer |
|
|
5.15 |
|
Change of Control Payment |
|
|
5.15 |
|
Change of Control Settlement Date |
|
|
5.15 |
|
Covenant Defeasance |
|
|
9.03 |
|
Discharge |
|
|
9.08 |
|
DTC |
|
|
3.06 |
|
Event of Default |
|
|
7.01 |
|
Excess Proceeds |
|
|
5.10 |
|
Incremental Funds |
|
|
5.07 |
|
incur |
|
|
5.09 |
|
Initial Notes |
|
Recitals |
Legal Defeasance |
|
|
9.02 |
|
Notes |
|
Recitals |
Offer Amount |
|
|
4.09 |
|
Offer Period |
|
|
4.09 |
|
Paying Agent |
|
|
3.06 |
|
Payment Default |
|
|
7.01 |
|
Permitted Debt |
|
|
5.09 |
|
Regular Record Date |
|
|
3.03 |
|
Registrar |
|
|
3.06 |
|
Restricted Payments |
|
|
5.07 |
|
Settlement Date |
|
|
4.09 |
|
Termination Date |
|
|
4.09 |
|
Section 2.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. Any terms incorporated in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the
TIA have the meanings so assigned to them.
Section 2.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) or is not exclusive;
27
(4) words in the singular include the plural, and in the plural include the singular;
(5) provisions apply to successive events and transactions;
(6) references to sections of or rules under the Securities Act or the Exchange Act
shall be deemed to include substitute, replacement or successor sections or rules adopted by
the SEC from time to time; and
(7) herein, hereof and other words of similar import refer to this Indenture as a
whole (as amended or supplemented from time to time) and not to any particular Article,
Section or other subdivision.
ARTICLE 3
THE NOTES
Section 3.01. Form and Dating.
The Notes and the Trustees certificate of authentication shall be in substantially the form
set forth in Exhibit A hereto, and the notations of Guarantee shall be in substantially the form
set forth in Exhibit B hereto, which are herein incorporated in and expressly made a part of this
Indenture. The Notes may have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or Depository therefor or as may, consistently
herewith, be determined by the Officers executing such Notes as evidenced by their execution
thereof.
The terms and provisions contained in the Notes (including the notations of Guarantees) shall
constitute, and are hereby expressly made, a part of this Indenture, and the Issuers, the
Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any provision of any
Note conflicts with the express provisions of this Indenture, the provisions of this Indenture
shall govern and be controlling (to the extent permitted by law).
The certificated Notes shall be printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the Officers executing such Notes, as
evidenced by their execution of such Notes.
The Notes shall be issued initially in the form of a Global Note, which shall be deposited
with the Trustee, as Notes Custodian. The aggregate principal amount of any Global Note may from
time to time be increased or decreased by adjustments made on the schedule attached to such Global
Note or on other records of the Trustee, acting as Notes Custodian.
Section 3.02. Form of Legend for Global Notes.
Every Global Note authenticated and delivered under this Indenture shall bear a legend in
substantially the following form:
28
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Section 3.03. Title and Terms.
The Notes shall be titled the 7.125% Senior Notes due 2021. The Trustee shall authenticate
the Notes to be authenticated and delivered under this Supplemental Indenture on the Issue Date in
an aggregate amount equal to $360,000,000, upon delivery of an Issuer Order.
The Notes will mature on April 1, 2021. Interest on the Notes will accrue at the rate of
7.125% per annum and will be payable semiannually in cash on each Interest Payment Date to the
Persons who are registered Holders of Notes at the close of business on the March 15 and September
15 (the Regular Record Date) immediately preceding the applicable Interest Payment Date. Interest
on the Notes will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from and including the date of issuance to but excluding the actual
Interest Payment Date. If an Interest Payment Date falls on a day that is not a Business Day, the
interest payment to be made on such Interest Payment Date will be made on the next succeeding
Business Day with the same force and effect as if made on such Interest Payment Date, and no
additional interest will accrue as a result of such delayed payment.
The Notes shall be redeemable as provided in Article 4 and subject to Legal Defeasance and
Covenant Defeasance as provided in Article 9. The Notes shall have such other terms as are
indicated in Exhibit A.
Section 3.04. Denominations.
The Notes shall be issuable only in fully registered form without coupons and only in
denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
29
Section 3.05. Execution and Authentication.
An Officer shall sign the Notes on behalf of each Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the Trustee manually signs the
certificate of authentication on the Note. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The aggregate principal amount of Notes which may be authenticated under this Indenture is
unlimited. The Issuers may, subject to Section 5.09 and Applicable Law, issue Additional Notes
under this Indenture from time to time after the Issue Date, upon delivery of an Issuer Order to
the Trustee specifying the aggregate principal amount of Additional Notes to be issued and
authenticated and the date of issue thereof. The Notes (including any Additional Notes
subsequently issued) shall be treated as a single class for all purposes under this Indenture,
including, without limitation, for waivers, amendments, redemptions and offers to purchase.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Note a certificate of authentication substantially in the
form provided for in Exhibit A, signed manually in the name of the Trustee by an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder. Notwithstanding the foregoing,
if any Note shall have been authenticated and delivered hereunder but never issued and sold by the
Issuers, and the Issuers shall deliver such Note to the Trustee for cancellation as provided in
Section 3.15, for all purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.06. Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the continental United States where Notes
may be presented for registration of transfer or for exchange (the Registrar) and an office or
agency in New York, New York where Notes may be presented for payment (the Paying Agent). The
Registrar shall keep a register of the Notes and of their transfer and exchange. The Issuers may
have one or more co-registrars and one or more additional paying agents. The term Registrar
includes any co-registrar, and the term Paying Agent includes any additional paying agent. The
Issuers may change any Paying Agent or Registrar without prior notice to any Holder. The Issuers
shall notify the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Issuers fail to appoint or maintain another entity as Registrar or Paying Agent,
the Trustee shall act as such and shall be entitled to additional compensation for such service
pursuant to Section 8.07. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
30
The Issuers initially appoint The Depository Trust Company (DTC) to act as Depository with
respect to the Global Notes.
The Issuers initially appoint the Trustee to act as the Registrar and Paying Agent at the
Corporate Trust Office. If the Trustee is no longer the Registrar and Paying Agent, the Issuers
shall provide the Trustee with access to inspect the Note register at all times and with copies of
the Note register.
Upon surrender for registration of transfer of any Note at the office of the Registrar, the
Issuers shall execute and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes, of any authorized denominations and of like tenor
and aggregate principal amount.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Issuers evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for exchange shall (if so
required by the Issuers or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Issuers and the Registrar duly executed, by the Holder
thereof or its attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Notes, but the
Issuers may require payment of a sum sufficient to cover any transfer tax or other governmental
taxes and fees that may be imposed by law or this Indenture in connection with any registration of
transfer or exchange of Notes.
If the Notes are to be redeemed in part, the Issuers shall not be required (A) to register the
transfer of or exchange any Notes during a period of 15 days before a selection of Notes for
redemption under Section 4.02, or (B) to register the transfer of or exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note being redeemed in
part. Further, the Issuers shall not be required to register the transfer of or exchange any Notes
between a Regular Record Date and the next succeeding Interest Payment Date.
The provisions of clauses (a) through (d) below shall apply only to Global Notes:
(a) Each Global Note authenticated under this Indenture shall be registered in the name of the
Depository designated for such Global Note or a nominee thereof and delivered to such Depository or
a nominee thereof or custodian therefor, and each such Global Note shall constitute a single Note
for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no Global Note may be exchanged in
whole or in part for Notes registered, and no transfer of a Global Note in whole or in part may be
registered, in the name of any Person other than the Depository for such Global Note or a nominee
thereof, unless (A) such Depository (i) has notified the Issuers that it is no longer willing or
able to discharge its responsibilities properly as Depository for such Global Note or (ii) has
ceased to be a clearing agency registered under the Exchange Act, and in either case the Issuers
have not appointed a qualified successor within 90 days, (B) an Event of Default
31
has occurred and is continuing and the Depository has notified the Issuers and the Trustee of
its desire to exchange such Global Note for Certificated Notes or (C) subject to the Depositorys
rules, the Issuers, at their option, have elected to terminate the book-entry system through the
Depository.
(c) Subject to clause (b) above, any exchange of a Global Note for other Notes may be made in
whole or in part, and all Notes issued in exchange for a Global Note or any portion thereof shall
be registered in such names as the Depository for such Global Note shall direct.
(d) Every Note authenticated and delivered upon registration of transfer of, or in exchange
for or in lieu of, a Global Note or any portion thereof, whether pursuant to this Section or
otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Note, unless
such Note is registered in the name of a Person other than the Depository for such Global Note or a
nominee thereof.
Section 3.07. Paying Agent to Hold Money in Trust.
Prior to 11:00 a.m. New York City time, on each due date of the principal and interest on any
Note, an Issuer shall deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Issuers shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent shall hold in trust for the benefit of
Noteholders or the Trustee all money held by the Paying Agent for the payment of principal of or
interest on the Notes and shall notify the Trustee in writing of any default by the Issuers in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it shall segregate
the money held by it as Paying Agent and hold it as a separate trust fund. The Issuers at any time
may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds
disbursed by the Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
Section 3.08. Noteholder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Noteholders. If the Trustee is not the
Registrar, the Issuers shall furnish to the Trustee, in writing at least five Business Days before
each Interest Payment Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names and addresses of
Noteholders and the principal amounts and number of Notes.
Section 3.09. Replacement Notes.
If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Note if the requirements of Section 8-405 of the Uniform Commercial Code
are met and the Holder satisfies any other reasonable requirements of the Trustee. If required by
the Trustee or the Issuers, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Issuers and the Trustee to protect the Issuers, the Trustee, the Paying Agent and the
Registrar from any loss which any of them may suffer if a Note is
32
replaced. The Issuers and the Trustee may charge the Holder for their expenses in replacing a
Note. In the event any such Note shall have matured, instead of issuing a new Note, the Issuers
may direct the Trustee to pay the same without surrender thereof upon the Holder furnishing the
Issuers and the Trustee with indemnity satisfactory to them and complying with such other
reasonable regulations as the Issuers may prescribe and paying such reasonable expenses as the
Issuer and the Trustee may incur in connection therewith.
Every replacement Note is an additional obligation of the Issuers.
Section 3.10. Outstanding Notes.
Notes outstanding at any time are all Notes authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in this Section as not
outstanding. Except as otherwise provided in TIA §316(a), a Note does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 3.07, it ceases to be outstanding unless the
Trustee, any provider of an indemnity bond and the Issuers receive proof satisfactory to them that
the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, by 11:00
a.m. New York time, on a redemption date or other maturity date money sufficient to pay all
principal, premium, if any, and interest payable on that date with respect to the Notes (or
portions thereof) to be redeemed or maturing, as the case may be, then on and after that date such
Notes (or portions thereof) cease to be outstanding and interest on them shall cease to accrue.
Section 3.11. Treasury Notes.
In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by an Issuer, by any Guarantor or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
either of the Issuers or any Guarantor, shall be considered as though not outstanding, except that
for the purposes of determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded.
Section 3.12. Payment of Interest; Interest Rights Preserved.
If a Holder has given wire transfer instructions to the Issuers, the Issuers will make all
payments of principal of, premium, if any, and interest on the Notes in accordance with those
instructions. All other payments in respect of the Notes shall be made at the office or agency of
the Paying Agent in New York, New York; provided that the Issuers may, at their option, pay
interest on the Notes by check mailed to the Holders at their registered address as it appears in
the Note register.
The Company shall pay principal of, premium, if any, and interest on the Global Notes
registered in the name of or held by DTC or its nominee in immediately available funds to DTC or
its nominee, as the case may be, as the registered Holder of such Global Notes.
33
Interest on any Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note is registered at the
close of business on the Regular Record Date for such interest.
If either of the Issuers or any Guarantor defaults in a payment of interest on the Notes, it
or they (to the extent of their obligations under the Subsidiary Guarantees) shall pay the
defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special record date, in each
case at the rate provided in the Notes and in Section 3.03 hereof. The Issuers shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on each Note, the
special record date and the date of the proposed payment. The Issuers shall fix or cause to be
fixed each such special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted interest. At least
15 days before the special record date, the Issuers (or, upon the written request of the Issuers,
the Trustee in the name and at the expense of the Issuers) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date and the amount of
such interest to be paid.
Subject to the foregoing provisions of this Section, each Note delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
Section 3.13. Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the Issuers, the Guarantors,
the Trustee and any agent of the Issuers or the Trustee may treat the Person in whose name such
Note is registered as the owner of such Note for the purpose of receiving payment of principal of,
and any premium and (subject to Section 3.12) any interest on, such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Issuers, the Guarantors, the
Trustee nor any of their respective agents shall be affected by notice to the contrary.
None of the Issuers, the Guarantors, the Trustee, nor any of their respective agents will have
any responsibility or liability for any aspect of the records relating to, or payments made on
account of, beneficial ownership interests of a Note or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.14. Temporary Notes.
Until definitive Notes are ready for delivery, the Issuers may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive
Notes but may have variations that the Issuers consider appropriate for temporary Notes. Without
unreasonable delay, the Issuers shall prepare and the Trustee shall authenticate definitive Notes
and deliver them in exchange for temporary Notes.
34
Section 3.15. Cancellation.
An Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and
the Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel (subject to the record
retention requirements of the Exchange Act) all Notes surrendered for registration of transfer,
exchange, payment or cancellation. Upon written request, the Trustee will deliver a certificate of
such cancellation to the Issuers unless the Issuers direct the Trustee to deliver canceled Notes to
the Issuers instead. The Issuers may not issue new Notes to replace Notes they have redeemed, paid
or delivered to the Trustee for cancellation.
Section 3.16. Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
Section 3.17. Global Securities.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not
taken by the Depository.
Section 3.18. CUSIP Numbers.
The Issuers in issuing the Notes may use CUSIP numbers and corresponding ISINs (if then
generally in use) and, if so, the Trustee shall use CUSIP numbers and corresponding ISINs in
notices of redemption as a convenience to Holders; provided, however, that any such notice may
state that no representation is made as to the correctness of such numbers either as printed on the
Notes or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers.
ARTICLE 4
REDEMPTION AND PREPAYMENT
Section 4.01. Notices to Trustee.
If the Issuers elect to redeem Notes pursuant to the optional redemption provisions of Section
4.07 hereof, they shall furnish to the Trustee, at least five Business Days (unless a shorter
period shall be agreeable to the Trustee) before the date of giving notice of the redemption
pursuant to Section 4.03, an Officers Certificate setting forth (i) the clause of Section 4.07
pursuant to which the redemption shall occur, (ii) the redemption date, (iii) the principal amount
of Notes to be redeemed, (iv) the redemption price, if then determinable, and (v) whether it
requests the Trustee to give notice of such redemption. Any such notice may be cancelled at any
time prior to the mailing of notice of such redemption to any Holder and shall thereby be void and
of no effect.
35
Section 4.02. Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the Trustee shall select the
Notes to be redeemed among the Holders of the Notes as follows: (1) if the Notes are listed on any
national securities exchange, in compliance with the requirements of the principal national
securities exchange on which the Notes are listed; or (2) if the Notes are not listed on any
national securities exchange, on a pro rata basis (except that Notes represented by a Global Note
will be redeemed by such method as DTC may require). In the event of partial redemption other than
on a pro rata basis, the particular Notes to be redeemed shall be selected, not less than five (5)
Business Days (unless a shorter period shall be agreeable to the Trustee) prior to the giving of
notice of the redemption pursuant to Section 4.03, by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Issuers in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. Notes and portions of Notes selected shall be in amounts of $2,000 or whole multiples of
$1,000 in excess thereof; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if less than $2,000 or not a multiple
of $1,000, shall be redeemed. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
The provisions of the two preceding paragraphs of this Section 4.02 shall not apply with
respect to any redemption affecting only a Global Note, whether such Global Note is to be redeemed
in whole or in part. In case of any such redemption in part, the unredeemed portion of the
principal amount of the Global Note shall be in an authorized denomination.
Section 4.03. Notice of Redemption.
Subject to the provisions of Section 4.09 hereof, at least 30 days but not more than 60 days
before a redemption date, except that redemption notices may be mailed more than 60 days prior to a
redemption date if the notice is issued in connection with a Legal Defeasance, Covenant Defeasance
or Discharge, the Issuers shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price or, if the redemption price is not then determinable, the
manner in which it is to be determined;
(c) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date upon surrender of such Note, a new
Note or Notes in a principal amount equal to the unredeemed portion shall be issued in the
name of the Holder upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
36
(e) that Notes called for redemption must be surrendered to the Paying Agent to collect
the redemption price;
(f) that, unless the Issuers default in making such redemption payment, interest on
Notes called for redemption will cease to accrue on and after the redemption date and the
only remaining right of the Holders of such Notes is to receive payment of the redemption
price upon surrender to the Paying Agent of the Notes redeemed;
(g) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of the CUSIP or
ISIN number, if any, listed in such notice or printed on the Notes.
If any of the Notes to be redeemed is in the form of a Global Note, then the Issuers shall
modify such notice to the extent necessary to accord with the procedures of the Depository
applicable to redemption.
At the Issuers request, the Trustee shall give the notice of optional redemption in the
Issuers names and at their expense; provided, however, that the Issuers shall have delivered to
the Trustee, as provided in Section 4.01, an Officers Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice as provided in the second
preceding paragraph.
Section 4.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 4.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional, except that any redemption described in Section
4.07(b) may, at the Issuers discretion, be subject to completion of the related Equity Offering.
If mailed in the manner provided for in Section 4.03, the notice of redemption shall be
conclusively presumed to have been given whether or not a Holder receives such notice. Failure to
give timely notice or any defect in the notice shall not affect the validity of the redemption.
Section 4.05. Deposit of Redemption Price.
Prior to 11:00 a.m., New York City time, on the redemption date, the Issuers shall deposit
with the Paying Agent (or, if the Company or a Subsidiary thereof is acting as Paying Agent,
segregate and hold in trust as provided in Section 3.07) money sufficient in same day funds to pay
the redemption price of and accrued interest, if any, on all Notes to be redeemed on that date.
The Paying Agent shall promptly return to the Issuers any money deposited with the Paying Agent by
an Issuer in excess of the amounts necessary to pay the redemption price of and accrued interest,
if any, on all Notes to be redeemed.
If the Issuers comply with the provisions of the preceding paragraph, on and after the
redemption date, interest shall cease to accrue on the Notes or the portions of Notes called for
redemption whether or not such Notes are presented for payment, and the only remaining right of the
Holders of such Notes shall be to receive payment of the redemption price upon surrender to
37
the Paying Agent of the Notes redeemed. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of an Issuer to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption date until such
principal is paid, and to the extent lawful, on any interest not paid on such unpaid principal, in
each case at the rate provided in the Notes and in Section 3.03 hereof.
Section 4.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Issuers shall issue in the name of the
Holder and the Trustee shall authenticate for the Holder at the expense of the Issuers a new Note
equal in principal amount to the unredeemed portion of the Note surrendered.
Section 4.07. Optional Redemption.
(a) Except as set forth in clauses (b), (c) and (d) of this Section 4.07, the Issuers shall
not have the option to redeem the Notes pursuant to this Section 4.07 prior to April 1,
2016. On or after April 1, 2016, the Issuers shall have the option to redeem the
Notes, in whole or in part at any time, at the redemption prices (expressed as percentages of
principal amount) set forth below, plus accrued and unpaid interest, if any, to the applicable
redemption date (subject to the right of Holders of record on the relevant record date to receive
interest due on an Interest Payment Date that is on or prior to the redemption date), if redeemed
during the twelve-month period beginning on April 1 of the years indicated below:
|
|
|
|
|
YEAR |
|
PERCENTAGE |
2016 |
|
|
103.563 |
% |
2017 |
|
|
102.375 |
% |
2018 |
|
|
101.188 |
% |
2019 and thereafter |
|
|
100.000 |
% |
(b) Notwithstanding the provisions of clause (a) of this Section 4.07, at any time prior to
April 1, 2014, the Issuers may on one or more occasions redeem up to 35% of the aggregate principal
amount of Notes (including any Additional Notes) issued under this Indenture at a redemption price
of 107.125% of the principal amount thereof, plus accrued and unpaid interest, if any, to the
redemption date (subject to the right of Holders of record on the relevant record date to receive
interest due on an Interest Payment Date that is on or prior to the redemption date), with the net
cash proceeds of one or more Equity Offerings, provided that:
(1) at least 65% of the aggregate principal amount of Notes (including any Additional
Notes) issued under this Indenture remains outstanding immediately after the occurrence of
each such redemption (excluding any Notes held by the Company and its Subsidiaries); and
(2) each such redemption occurs within 120 days of the date of the closing of each such
Equity Offering.
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(c) Prior to April 1, 2016, the Issuers may redeem all or part of the Notes at a redemption
price equal to the sum of:
(1) 100% of the principal amount thereof, plus
(2) accrued and unpaid interest, if any, to the redemption date (subject to the right
of Holders of record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the redemption date), plus
(3) the Make Whole Premium at the redemption date.
(d) Following a Change of Control Offer, the Notes shall also be redeemable, at the Companys
option, subject to the conditions and as provided in Section 5.15(7) hereof.
(e) Any redemption pursuant to this Section 4.07 shall be made pursuant to the provisions of
Section 4.01 through Section 4.06 hereof.
Section 4.08. Mandatory Redemption.
Except as set forth under Sections 5.10 and 5.15 hereof, neither of the Issuers shall be
required to make mandatory redemption or sinking fund payments with respect to the Notes or to
repurchase the Notes at the option of the Holders.
Section 4.09. Offer to Purchase by Application of Excess Proceeds.
In the event that, pursuant to Section 5.10 hereof, the Company shall be required to commence
an offer to all Holders to purchase Notes (an Asset Sale Offer), it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period of 20 Business Days following its
commencement and no longer, except to the extent that a longer period is required by Applicable Law
(the Offer Period). No later than five Business Days after the termination of the Offer Period
(the Settlement Date), the Company shall purchase and pay for the principal amount of Notes
required to be purchased pursuant to Section 5.10 hereof (the Offer Amount) or, if less than the
Offer Amount has been tendered, all Notes validly tendered in response to the Asset Sale Offer.
Payment for any Notes so purchased shall be made in the manner prescribed in the Notes.
Upon the commencement of an Asset Sale Offer, the Company shall send, by first class mail, a
notice to each of the Holders, with a copy to the Trustee. The notice shall contain all
instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset
Sale Offer. The Asset Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this Section 4.09 and Section
5.10 hereof and the length of time the Asset Sale Offer shall remain open, including the
time and date the Asset Sale Offer will terminate (the Termination Date);
39
(b) the Offer Amount and the purchase price;
(c) that any Note not tendered or accepted for payment shall continue to accrue
interest;
(d) that, unless the Company defaults in making such payment, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after the Settlement
Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may
only elect to have all of such Note purchased and may not elect to have only a portion of
such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset Sale Offer
shall be required to surrender the Note, with the form entitled Option of Holder to Elect
Purchase on the reverse of the Note completed, to the Company or a Paying Agent at the
address specified in the notice, before the Termination Date;
(g) that Holders shall be entitled to withdraw their election if the Company or the
Paying Agent, as the case may be, receives, prior to the Termination Date, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the principal amount
of the Note the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the
amount of Notes the Company is required to repurchase, the Trustee shall select the Notes to
be purchased on a pro rata basis (or, in the case of Notes represented by a Global Note, the
Trustee shall select Notes for purchase by such method as DTC may require, and in any case
with such adjustments as may be deemed appropriate by the Trustee so that only Notes in
denominations of $2,000, or integral multiples of $1,000 in excess thereof, shall be
purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered (or
transferred by book-entry transfer).
If any of the Notes subject to an Asset Sale Offer is in the form of a Global Note, then the
Company shall modify such notice to the extent necessary to accord with the procedures of the
Depository applicable to repurchases.
Promptly after the Termination Date, the Company shall, to the extent lawful, accept for
payment Notes or portions thereof tendered pursuant to the Asset Sale Offer in the aggregate
principal amount required by Section 5.10 hereof, and on or prior to the Settlement Date it shall
deliver to the Trustee an Officers Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section 4.09 and Section
5.10. Prior to 11:00 a.m., New York City time, on the Settlement Date, the Company or the Paying
Agent, as the case may be, shall mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such Holder and accepted by the Company
40
for purchase, and the Company shall issue a new Note, and the Trustee shall authenticate and
mail or deliver such new Note to such Holder, in a principal amount equal to any unpurchased
portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the results of the Asset
Sale Offer on or before the Settlement Date.
ARTICLE 5
COVENANTS
Section 5.01. Payment of Notes.
The Issuers shall pay or cause to be paid the principal of, premium, if any, and interest on
the Notes on the dates and in the manner provided in Section 3.03 and the Notes. Principal,
premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if
other than the Company or a Subsidiary thereof, holds as of 11:00 a.m., New York City time, on the
due date money deposited by an Issuer or a Guarantor in immediately available funds and designated
for and sufficient to pay all principal, premium, if any, and interest then due.
The Issuers shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at the rate equal to the interest rate on the Notes to the
extent lawful; 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 period), at the same rate to the extent lawful.
Section 5.02. Maintenance of Office or Agency.
The Issuers shall maintain an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee) in New York, New York where Notes may be presented or surrendered for
payment and they shall maintain an office or agency in the continental United States (which may be
an office of the Trustee or an affiliate of the Trustee) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or upon the Issuers in
respect of the Notes and this Indenture may be served. The Issuers shall give prompt written
notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Issuers shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuers may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. Further, if at any time there shall be no such office or agency in the
City of New York where the Notes may be presented or surrendered for payment, the Issuers shall
forthwith designate and maintain such an office or agency in the City of New York, in order that
the Notes shall at all times be payable in the City of New York. The Issuers shall give prompt
written notice to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
41
The Issuers hereby designate the Corporate Trust Office of the Trustee as one such office or
agency of the Company in accordance with Section 3.06.
Section 5.03. Reports.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, so long as any Notes are outstanding, the Company will
file with the SEC for public availability within the time periods specified in the SECs rules and
regulations under the Exchange Act (unless the SEC will not accept such a filing) and, within five
Business Days of filing, or attempting to file, the same with the SEC, furnish to the Trustee and,
upon its prior request, to any of the Holders or Beneficial Owners of the Notes:
(1) all quarterly and annual financial and other information with respect to the
Company and its Subsidiaries that would be required to be contained in a filing with the SEC
on Forms 10-Q and 10-K if the Company were required to file such forms, including a
Managements Discussion and Analysis of Financial Condition and Results of Operations and,
with respect to the annual information only, a report thereon by the Companys certified
independent accountants; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.
The Company shall at all times comply with TIA § 314(a).
(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then,
to the extent material, the quarterly and annual financial information required by paragraph (a) of
this Section 5.03 shall include a reasonably detailed presentation, either on the face of the
financial statements or in the footnotes to the financial statements and in Managements Discussion
and Analysis of Financial Condition and Results of Operations, of the financial condition and
results of operations of the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries.
(c) The availability of the foregoing information or reports on the SECs website will be
deemed to satisfy the foregoing delivery requirements.
(d) Delivery of reports, information and documents to the Trustee under this Section is for
informational purposes only and the Trustees receipt of the foregoing shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein.
Section 5.04. Compliance Certificate.
(a) The Issuers shall deliver to the Trustee, within 90 days after the end of each fiscal year
of the Company ending after December 31, 2010, an Officers Certificate stating that a review of
the activities of the Company and its Restricted Subsidiaries during the preceding fiscal year has
been made under the supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations
42
under this Indenture, and further stating, as to each such Officer signing such certificate,
that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or
Event of Default shall have occurred, describing all such Defaults or Events of Default of which he
or she may have knowledge and what action the Company is taking or proposes to take with respect
thereto) and that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments of interest on the Notes are prohibited or if such event has
occurred, a description of the event and what action the Company is taking or proposes to take with
respect thereto.
(b) The Issuers shall, so long as any of the Notes are outstanding, deliver to the Trustee,
forthwith upon any of their respective Officers becoming aware of any Default or Event of Default,
a written statement specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 5.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
Section 5.06. Stay, Extension and Usury Laws.
Each of the Issuers and each of the Guarantors covenants (to the extent that it may lawfully
do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this Indenture; and each
Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it shall not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 5.07. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly:
(1) declare or pay any dividend or make any other payment or distribution on account of
the Companys or any of its Restricted Subsidiaries Equity Interests (including, without
limitation, any payment in connection with any merger or consolidation involving the Company
or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Companys
or any of its Restricted Subsidiaries Equity Interests in their capacity as such (other
than dividends or distributions payable in Equity Interests (other than Disqualified Stock)
of the Company or payable to the Company or a Restricted Subsidiary of the Company);
43
(2) purchase, redeem or otherwise acquire or retire for value (including, without
limitation, in connection with any merger or consolidation involving the Company) any Equity
Interests of the Company or any direct or indirect parent of the Company;
(3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is subordinated to the Notes or the
Subsidiary Guarantees (excluding any intercompany Indebtedness between or among the Company
and any of its Restricted Subsidiaries), except a payment of interest or principal at the
Stated Maturity thereof; or
(4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as Restricted
Payments),
unless, at the time of and after giving effect to such Restricted Payment, no Default (except a
Reporting Default) or Event of Default has occurred and is continuing or would occur as a
consequence of such Restricted Payment and either:
(1) if the Fixed Charge Coverage Ratio for the Companys most recently ended four full
fiscal quarters for which internal financial statements are available at the time of such
Restricted Payment is not less than 1.75 to 1.0, such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries (excluding Restricted Payments permitted by clauses (2), (3), (4) and (5) of
the next succeeding paragraph) with respect to the quarter for which such Restricted Payment
is made, is less than the sum, without duplication, of:
(a) Available Cash from Operating Surplus with respect to the Companys
preceding fiscal quarter, plus
(b) 100% of the aggregate net cash proceeds received by the Company (including
the fair market value of any Permitted Business or long-term assets that are used or
useful in a Permitted Business to the extent acquired in consideration of Equity
Interests of the Company (other than Disqualified Stock)) after the date of the 2006
Indenture as a contribution to its common equity capital or from the issue or sale
of Equity Interests of the Company (other than Disqualified Stock) or from the issue
or sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Company that have been converted into or
exchanged for such Equity Interests (other than Equity Interests (or Disqualified
Stock or debt securities) sold to a Restricted Subsidiary of the Company), plus
(c) to the extent that any Restricted Investment that was made after the date
of the 2006 Indenture is sold for cash or otherwise liquidated or repaid for cash,
the cash return of capital with respect to such Restricted Investment (less the cost
of disposition, if any), plus
44
(d) the net reduction in Restricted Investments resulting from dividends,
repayments of loans or advances, or other transfers of assets in each case to the
Company or any of its Restricted Subsidiaries from any Person (including, without
limitation, Unrestricted Subsidiaries) or from redesignations of Unrestricted
Subsidiaries as Restricted Subsidiaries, to the extent such amounts have not been
included in Available Cash from Operating Surplus for any period commencing on or
after the date of the 2006 Indenture (items (b), (c) and (d) being referred to as
Incremental Funds), minus
(e) the aggregate amount of Incremental Funds previously expended pursuant to
this clause (1) and clause (2) below; or
(2) if the Fixed Charge Coverage Ratio for the Companys most recently ended four full
fiscal quarters for which internal financial statements are available at the time of such
Restricted Payment is less than 1.75 to 1.00, such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries (excluding Restricted Payments permitted by clauses (2), (3), (4) and (5) of
the next succeeding paragraph) with respect to the quarter for which such Restricted Payment
is made (such Restricted Payments for purposes of this clause (2) meaning only distributions
on common units of the Company), is less than the sum, without duplication, of:
(a) $45.0 million less the aggregate amount of all prior Restricted Payments
made by the Company and its Restricted Subsidiaries pursuant to this clause (2)(a)
since the date of this Indenture, plus
(b) Incremental Funds to the extent not previously expended pursuant to this
clause (2) or clause (1) above.
So long as no Default (except a Reporting Default) or Event of Default has occurred and is
continuing or would be caused thereby (except with respect to clause (1) below under which the
payment of a distribution or dividend is permitted), the preceding provisions will not prohibit:
(1) the payment of any dividend or distribution within 60 days after the date of its
declaration, if at the date of declaration the payment would have complied with the
provisions of this Indenture;
(2) the purchase, redemption, defeasance or other acquisition or retirement for value
of any subordinated Indebtedness of the Company or any Guarantor or of any Equity Interests
of the Company in exchange for, or out of the net cash proceeds of the substantially
concurrent (a) contribution (other than from a Restricted Subsidiary of the Company) to the
equity capital of the Company or (b) sale (other than to a Restricted Subsidiary of the
Company) of, Equity Interests of the Company (other than Disqualified Stock), with a sale
being deemed substantially concurrent if such purchase, redemption, defeasance or other
acquisition or retirement for value occurs not more than 120 days after such sale; provided,
however, that the amount of any such net cash proceeds that are
45
utilized for any such purchase, redemption, defeasance or other acquisition or
retirement for value will be excluded (or deducted, if included) from the calculation of
Available Cash from Operating Surplus and Incremental Funds;
(3) the purchase, redemption, defeasance or other acquisition or retirement for value
of subordinated Indebtedness of the Company or any Guarantor with the net cash proceeds from
an incurrence of, or in exchange for, Permitted Refinancing Indebtedness;
(4) the payment of any dividend or distribution by a Restricted Subsidiary of the
Company to the holders of its Equity Interests on a pro rata basis; or
(5) the purchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company or any Restricted Subsidiary of the Company pursuant to any
director or employee equity subscription agreement or equity option agreement or other
employee benefit plan or to satisfy obligations under any Equity Interests appreciation
rights or option plan or similar arrangement; provided, however, that the aggregate price
paid for all such purchased, redeemed, acquired or retired Equity Interests may not exceed
$2.0 million in any calendar year, with any portion of such $2.0 million amount that is
unused in any calendar year to be carried forward to successive calendar years and added to
such amount.
The amount of all Restricted Payments (other than cash) will be the fair market value on the
date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued
by the Company or such Restricted Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any assets or securities that are required to be valued by this
covenant will be determined, in the case of amounts under $15.0 million, by an officer of the
Company and, in the case of amounts over $15.0 million, by the Board of Directors of the Company,
whose determination shall be evidenced by a Board Resolution. Not later than the date of making
any Restricted Payment (excluding any Restricted Payment described in the preceding clause (2),
(3), (4) or (5)) the Company will deliver to the Trustee an Officers Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the calculations required by
this Section 5.07 were computed. For purposes of determining compliance with this Section 5.07, in
the event that a Restricted Payment meets the criteria of more than one of the categories of
Restricted Payments described in the preceding clauses (1) (5), the Company will be permitted to
classify (or later classify or reclassify in whole or in part in its sole discretion) such
Restricted Payment in any manner that complies with this Section 5.07.
Section 5.08. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries.
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist or become effective any consensual encumbrance or restriction
on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or pay any Indebtedness or other obligations owed to
the Company or any of its Restricted Subsidiaries;
46
(2) make loans or advances to the Company or any of its Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or any of its Restricted
Subsidiaries.
However, the preceding restrictions of this Section 5.08 will not apply to encumbrances or
restrictions existing under or by reason of:
(1) agreements as in effect on the date of this Indenture and any amendments,
modifications, restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements or the Indebtedness to which they relate, provided that the
amendments, modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, with respect to such
dividend, distribution and other payment restrictions than those contained in those
agreements on the date of this Indenture;
(2) this Indenture, the Notes and the Subsidiary Guarantees;
(3) Applicable Law;
(4) any instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition,
which encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person, or the property or assets of the Person, so
acquired, provided that, in the case of Indebtedness, such Indebtedness was otherwise
permitted by the terms of this Indenture to be incurred;
(5) customary non-assignment provisions in Hydrocarbon purchase and sale or exchange
agreements or similar operational agreements or in licenses or leases, in each case entered
into in the ordinary course of business and consistent with past practices;
(6) Capital Lease Obligations, mortgage financings or purchase money obligations, in
each case for property acquired in the ordinary course of business that impose restrictions
on that property of the nature described in clause (3) of the preceding paragraph;
(7) any agreement for the sale or other disposition of a Restricted Subsidiary of the
Company that restricts distributions by that Restricted Subsidiary pending its sale or other
disposition;
(8) Permitted Refinancing Indebtedness, provided that the restrictions contained in the
agreements governing such Permitted Refinancing Indebtedness are not materially more
restrictive, taken as a whole, than those contained in the agreements governing the
Indebtedness being refinanced;
47
(9) Liens securing Indebtedness otherwise permitted to be incurred under the provisions
of Section 5.12 that limit the right of the debtor to dispose of the assets subject to such
Liens;
(10) provisions with respect to the disposition or distribution of assets or property
in joint venture agreements, asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business;
(11) any agreement or instrument relating to any property or assets acquired after the
date of this Indenture, so long as such encumbrance or restriction relates only to the
property or assets so acquired and is not and was not created in anticipation of such
acquisitions;
(12) restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business;
(13) any instrument governing Indebtedness of an FERC Subsidiary, provided that such
Indebtedness was otherwise permitted by the terms of this Indenture to be incurred;
(14) the issuance of preferred securities by a Restricted Subsidiary of the Company or
the payment of dividends thereon in accordance with the terms thereof; provided that
issuance of such preferred securities is permitted pursuant to Section 5.09 and the terms of
such preferred securities do not expressly restrict the ability of such Restricted
Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than
requirements to pay dividends or liquidation preferences on such preferred securities prior
to paying any dividends or making any other distributions on such other Capital Stock);
(15) with respect to any Foreign Subsidiary, any encumbrance or restriction contained
in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was
incurred if either (a) the encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant in such Indebtedness or agreement
or (b) the Company determines that any such encumbrance or restriction will not materially
affect the Companys ability to make principal or interest payments on the notes, as
determined in good faith by the Board of Directors of the Company, whose determination shall
be conclusive; and
(16) any other agreement governing Indebtedness of the Company or any Guarantor that is
permitted to be incurred by Section 5.09; provided, however, that such encumbrances or
restrictions are not materially more restrictive, taken as a whole, than those contained in
the Credit Agreement as it exists on the date of this Indenture.
Section 5.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock.
The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly
liable, contingently or otherwise, with respect to (collectively, incur) any Indebtedness
48
(including Acquired Debt), the Company will not issue any Disqualified Stock, and the Company
will not permit any of its Restricted Subsidiaries to issue any preferred securities; provided,
however, that the Company and any of its Restricted Subsidiaries may incur Indebtedness (including
Acquired Debt) or issue Disqualified Stock, and any Restricted Subsidiary may issue other preferred
securities, if the Fixed Charge Coverage Ratio for the Companys most recently ended four full
fiscal quarters for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified Stock or other
preferred securities are issued would have been at least 2.0 to 1.0, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if the additional
Indebtedness had been incurred or Disqualified Stock or other preferred securities had been issued,
as the case may be, at the beginning of such four-quarter period.
The first paragraph of this Section 5.09 will not prohibit the incurrence of any of the
following items of Indebtedness (collectively, Permitted Debt) or the issuance of any preferred
securities described in clause (11) below:
(1) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness (including letters of credit) under one or more Credit Facilities, provided
that, after giving effect to any such incurrence, the aggregate principal amount of all
Indebtedness incurred under this clause (1) (with letters of credit being deemed to have a
principal amount equal to the maximum potential liability of the Company and its
Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $800.0
million or (b) $500.0 million plus 20% of the Companys Consolidated Net Tangible Assets;
(2) the incurrence by the Company or any of its Restricted Subsidiaries of the Existing
Indebtedness;
(3) the incurrence by the Company and the Guarantors of Indebtedness represented by (a)
the Notes issued and sold on the Issue Date and the related Subsidiary Guarantees issued on
the date of this Indenture;
(4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money obligations,
in each case, incurred for the purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or equipment used in the business of
the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness
incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred
pursuant to this clause (4), provided that after giving effect to any such incurrence, the
principal amount of all Indebtedness incurred pursuant to this clause (4) and then
outstanding does not exceed the greater of (a) $50.0 million or (b) 3.0% of the Companys
Consolidated Net Tangible Assets at such time;
(5) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are
49
used to extend, refinance, renew, replace, defease or refund Indebtedness that was
permitted by this Indenture to be incurred under the first paragraph of this Section 5.09 or
clause (2) or (3) of this paragraph or this clause (5);
(6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided,
however, that:
(a) if the Company is the obligor on such Indebtedness and a Guarantor is not
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes, or if a Guarantor is
the obligor on such Indebtedness and neither the Company nor another Guarantor is
the obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Subsidiary Guarantee of such
Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of
the Company will be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that
was not permitted by this clause (6);
(7) the incurrence by the Company or any of its Restricted Subsidiaries of obligations
under Hedging Contracts;
(8) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness
of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by
another provision of this Section 5.09;
(9) the incurrence by the Company or any of its Restricted Subsidiaries of obligations
relating to net gas balancing positions arising in the ordinary course of business and
consistent with past practice;
(10) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness in respect of bid, performance, surety and similar bonds issued for the account
of the Company and any of its Restricted Subsidiaries in the ordinary course of business,
including guarantees and obligations of the Company or any of its Restricted Subsidiaries
with respect to letters of credit supporting such obligations (in each case other than an
obligation for money borrowed);
(11) the issuance by any of the Companys Restricted Subsidiaries to the Company or to
any of its Restricted Subsidiaries of any preferred securities; provided, however, that:
50
(a) any subsequent issuance or transfer of Equity Interests that results in any
such preferred securities being held by a Person other than the Company or a
Restricted Subsidiary of the Company; and
(b) any sale or other transfer of any such preferred securities to a Person
that is not either the Company or a Restricted Subsidiary of the Company
shall be deemed, in each case, to constitute an issuance of such preferred securities by
such Restricted Subsidiary that was not permitted by this clause (11); and
(12) the incurrence by the Company or any of its Restricted Subsidiaries of liability
in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint
Venture but only to the extent that such liability is the result of the Companys or any
such Restricted Subsidiarys being a general partner of such Unrestricted Subsidiary or
Joint Venture and not as guarantor of such Indebtedness and provided that, after giving
effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred
under this clause (12) and then outstanding does not exceed $50.0 million;
(13) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired
Debt in connection with a merger or consolidation meeting either one of the financial tests
set forth in clause (d) of Section 6.01; and
(14) the incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness, provided that, after giving effect to any such incurrence, the aggregate
principal amount of all Indebtedness incurred under this clause (14) and then outstanding
does not exceed the greater of (a) $80.0 million or (b) 5.0% of the Companys Consolidated
Net Tangible Assets.
For purposes of determining compliance with this Section 5.09, in the event that an item of
Indebtedness (including Acquired Debt) meets the criteria of more than one of the categories of
Permitted Debt described in clauses (1) through (14) above, or is entitled to be incurred pursuant
to the first paragraph of this Section 5.09, the Company will be permitted to classify (or later
classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness in any
manner that complies with this covenant. Any Indebtedness under Credit Facilities on the date of
this Indenture shall be considered incurred under the first paragraph of this Section 5.09.
The accrual of interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of
Disqualified Stock for purposes of this Section 5.09, provided, in each such case, that the amount
thereof is included in Fixed Charges of the Company as accrued. Notwithstanding any other
provision of this Section 5.09, the maximum amount of Indebtedness that the Company or any
Restricted Subsidiary may incur pursuant to this Section 5.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values. Further, the accounting
reclassification of any obligation of the Company or any of its Restricted Subsidiaries
51
as Indebtedness will not be deemed an incurrence of Indebtedness for purposes of this Section
5.09.
Section 5.10. Limitation on Asset Sales.
The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless:
(1) the Company (or a Restricted Subsidiary, as the case may be) receives consideration
at the time of the Asset Sale at least equal to the fair market value of the assets or
Equity Interests issued or sold or otherwise disposed of;
(2) the fair market value is determined by (a) an executive officer of the Company if
the value is less than $15.0 million and evidenced by an Officers Certificate delivered to
the Trustee, or (b) the Companys Board of Directors if the value is $15.0 million or more
and evidenced by a resolution of the Board of Directors set forth in an Officers
Certificate delivered to the Trustee; and
(3) at least 75% of the aggregate consideration received by the Company and its
Restricted Subsidiaries in the Asset Sale and all other Asset Sales since the date of this
Indenture is in the form of cash. For purposes of this provision, each of the following
will be deemed to be cash:
(a) any liabilities, as shown on the Companys or any Restricted Subsidiarys
most recent balance sheet, of the Company or such Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any
Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant
to a customary novation agreement that releases the Company or such Subsidiary from
further liability; and
(b) any securities, notes or other obligations received by the Company or any
such Restricted Subsidiary from such transferee that are, within 90 days after the
Asset Sale, converted by the Company or such Subsidiary into cash, to the extent of
the cash received in that conversion.
Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any
such Restricted Subsidiary may apply those Net Proceeds at its option to any combination of the
following:
(I) to repay Senior Debt;
(II) to acquire all or substantially all of the properties or assets of a Person primarily
engaged in a Permitted Business;
(III) to acquire a majority of the Voting Stock of a Person primarily engaged a Permitted
Business;
(IV) to make capital expenditures; or
52
(V) to acquire other long-term assets that are used or useful in a Permitted Business.
Pending the final application of any Net Proceeds, the Company or any such Restricted
Subsidiary may invest the Net Proceeds in any manner that is not prohibited by this Indenture. Any
Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding
paragraph will constitute Excess Proceeds.
On the 361st day after the Asset Sale (or, at the Companys option, any earlier date), if the
aggregate amount of Excess Proceeds then exceeds $20.0 million, the Company will make an Asset Sale
Offer to all Holders of Notes, and to all holders of Pari Passu Indebtedness then outstanding, to
purchase on a pro rata basis the maximum principal amount of Notes and such Pari Passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be
equal to 100% of principal amount plus accrued and unpaid interest, if any, to the Settlement Date,
subject to the right of Holders of record on the relevant record date to receive interest due on an
Interest Payment Date that is on or prior to the Settlement Date, and will be payable in cash. If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company or any Restricted
Subsidiary may use those Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes tendered into such Asset Sale Offer exceeds
the amount of Excess Proceeds allocated to the Notes, the Trustee will select the Notes to be
purchased on a pro rata basis as set forth in Section 4.09(h) of this Indenture (or in the case of
Notes represented by a Global Note, the Trustee will select Notes for purchase by such method as
DTC may require, and in any case with such adjustments as may be deemed appropriate by the Trustee
so that only Notes in denominations of $2,000, or integral multiples of $1,000 in excess thereof,
shall be purchased). Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will
be reset at zero.
The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the
extent that the provisions of any securities laws or regulations conflict with the provisions of
this Section 5.10, the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under such provisions by virtue of such
conflict.
Section 5.11. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of its Restricted Subsidiaries to, make any
payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate
(each, an Affiliate Transaction), unless:
(1) the Affiliate Transaction is on terms that are no less favorable to the Company or
the relevant Restricted Subsidiary than those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with an unrelated Person; and
53
(2) the Company delivers to the Trustee, with respect to any Affiliate Transaction or
series of related Affiliate Transactions involving aggregate consideration in excess of
$15.0 million, a resolution of the Board of Directors of the Company set forth in an
Officers Certificate certifying that such Affiliate Transaction or series of Affiliate
Transactions complies with this Section 5.11 and that such Affiliate Transaction or series
of Affiliate Transactions has been approved by a majority of the disinterested members of
the Board of Directors of the Company.
The following items will not be deemed to be Affiliate Transactions and, therefore, will not
be subject to the provisions of the prior paragraph of this Section 5.11:
(1) any employment equity award, equity option or equity appreciation agreement or plan
entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of
business;
(2) transactions between or among any of the Company and its Restricted Subsidiaries;
(3) transactions with a Person that is an Affiliate of the Company solely because the
Company owns an Equity Interest in such Person;
(4) customary compensation, indemnification and other benefits made available to
officers, directors or employees of the Company or a Restricted Subsidiary or Affiliate of
the Company, including reimbursement or advancement of out-of-pocket expenses and provisions
of officers and directors liability insurance;
(5) sales of Equity Interests (other than Disqualified Stock) to, or receipt of capital
contributions from, Affiliates of the Company;
(6) Permitted Investments or Restricted Payments that are permitted by Section 5.07;
(7) transactions effected in accordance with the terms of the Administrative and
Operating Services Agreement with Copano/Operations Inc., effective January 1, 2010, as such
agreement is in effect on the date of this Indenture, and any amendment or extension of such
agreement so long as such amendment or extension agreement is no less advantageous to the
Company in any material respect than the agreement so amended or extended;
(8) the guarantee by ScissorTail Energy LLC of the performance by Southern Dome, LLC of
its obligations under the Gas Purchase and Processing Agreement effective as of May 1, 2005
between Southern Dome, LLC and New Dominion, L.L.C., as such agreement is in effect on the
date of this Indenture, and any amendment or extension of such agreement so long as such
amendment or extension agreement is no less advantageous to the Company in any material
respect than the agreement so amended or extended;
54
(9) transactions effected in accordance with the terms of the operating, limited
liability company or partnership agreement, as applicable, of each Equity Investee, or any
agreements ancillary thereto, as each such agreement is in effect on the date of this
Indenture, and any amendment or extension of such agreement so long as such amendment or
extension agreement is no less advantageous to the Company in any material respect than the
agreement so amended or extended; and
(10) in the case of contracts for purchasing, selling, gathering, transporting,
treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons,
or activities or services reasonably related or ancillary thereto, or other operational
contracts, any such contracts are entered into in the ordinary course of business on terms
substantially similar to those contained in similar contracts entered into by the Company or
any Restricted Subsidiary and third parties.
Section 5.12. Limitation on Liens
The Company will not and will not permit any of its Restricted Subsidiaries to, create, incur,
assume or otherwise cause or suffer to exist or become effective any Lien of any kind (other than
Permitted Liens) securing Indebtedness or Attributable Debt upon any of their property or assets,
now owned or hereafter acquired, unless the Notes or any Subsidiary Guarantee of such Restricted
Subsidiary, as applicable, is secured on an equal and ratable basis with (or on a senior basis to,
in the case of obligations subordinated in right of payment to the Notes or such Subsidiary
Guarantee, as the case may be) the obligations so secured until such time as such obligations are
no longer secured by a Lien.
Section 5.13. Additional Subsidiary Guarantees.
If, after the date of this Indenture, any Restricted Subsidiary of the Company that is not
already a Guarantor guarantees any other Indebtedness of either of the Issuers or any Indebtedness
of any Guarantor, or any Domestic Subsidiary, if not then a Guarantor, incurs any Indebtedness
under any Credit Facility, then in either case that Subsidiary will become a Guarantor by executing
a supplemental indenture substantially in the form of Exhibit C and delivering it to the Trustee
within twenty Business Days of the date on which it guaranteed or incurred such Indebtedness, as
the case may be, together with any Officers Certificate or Opinion of Counsel required by Section
10.06; provided, however, that the preceding shall not apply to Subsidiaries of the Company that
have properly been designated as Unrestricted Subsidiaries in accordance with this Indenture for so
long as they continue to constitute Unrestricted Subsidiaries. Notwithstanding the preceding, any
Subsidiary Guarantee of a Restricted Subsidiary that was incurred pursuant to this Section 5.13 as
a result of its guarantee of any Indebtedness shall provide by its terms that it shall be
automatically and unconditionally released upon the release or discharge of the guarantee that
resulted in the creation of such Restricted Subsidiarys Subsidiary Guarantee, except a discharge
or release by, or as a result of payment under, such guarantee.
55
Section 5.14. Corporate Existence.
Except as otherwise permitted pursuant to the terms hereof (including consolidation and merger
permitted by Section 6.01), the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, and the corporate, partnership
or other existence of each of its Restricted Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such
Restricted Subsidiary; provided, however, that the Company shall not be required to preserve the
existence of any of its Restricted Subsidiaries (except Finance Corp.) if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of the business of
the Company and its Restricted Subsidiaries taken as a whole and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.
Section 5.15. Offer to Repurchase Upon Change of Control.
(1) Within 30 days following the occurrence of a Change of Control, the Company shall
make an offer (a Change of Control Offer) to repurchase all or any part (equal to $2,000
or an integral multiple of $1,000 in excess thereof) of each Holders Notes at a purchase
price (the Change of Control Payment) in cash equal to 101% of the aggregate principal
amount of Notes repurchased, plus accrued and unpaid interest, if any, thereon to the date
of settlement (the Change of Control Settlement Date), subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that
is on or prior to the Change of Control Settlement Date. Within 30 days following a Change
of Control, the Company shall mail a notice of the Change of Control Offer to each Holder
and the Trustee describing the transaction that constitutes the Change of Control and
stating:
(a) that the Change of Control Offer is being made pursuant to this Section
5.15 and that all Notes validly tendered and not withdrawn will be accepted for
payment;
(b) the purchase price and the expiration date of the Change of Control Offer,
which shall be no earlier than 30 days but no later than 60 days from the date such
notice is mailed;
(c) that on the Change of Control Settlement Date the Company shall pay the
Change of Control Purchase Price for all Notes accepted for purchase in the Change
of Control Offer;
(d) that any Note not tendered will continue to accrue interest;
(e) that, unless the Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Settlement Date;
(f) that Holders electing to have any Notes purchased pursuant to the Change of
Control Offer will be required to surrender the Notes, properly
56
endorsed for transfer, together with the form entitled Option of Holder to
Elect Purchase on the reverse of the Notes completed and such customary documents
as the Company may reasonably request, to the Paying Agent at the address specified
in the notice prior to the termination of the Change of Control Offer;
(g) that Holders will be entitled to withdraw their election if the Paying
Agent receives, prior to the termination of the Change of Control Offer, a telegram,
facsimile transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing its election to have the Notes purchased; and
(h) that Holders whose Notes are being purchased only in part will be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $2,000 in principal amount
or an integral multiple of $1,000 in excess thereof.
If any of the Notes subject to a Change of Control Offer is in the form of a Global Note,
then the Company shall modify such notice to the extent necessary to accord with the
procedures of the Depository applicable to repurchases. Further, the Company shall comply
with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of Notes as a result of a Change of Control. To the extent that the
provisions of any securities laws or regulations conflict with the provisions of this
Section 5.15, the Company will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under such provisions by virtue of
such conflict.
(2) Promptly following the expiration of the Change of Control Offer, the Company
shall, to the extent lawful, accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer. Promptly thereafter on the Change of
Control Settlement Date the Company shall:
(a) deposit with the Paying Agent by 11:00 a.m., New York City time, an amount
equal to the Change of Control Payment in respect of all Notes or portions thereof
so tendered; and
(b) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers Certificate stating the aggregate principal amount of
Notes or portions of Notes being purchased by the Company.
On the Change of Control Settlement Date, the Paying Agent shall mail to each Holder of
Notes properly tendered the Change of Control Payment for such Notes (or, if all the Notes
are then in global form, make such payment through the facilities of the Depository) and the
Trustee shall authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of the Notes
surrendered, if any; provided, however, that each such new Note will be in a principal
amount of $2,000 or an integral multiple of $1,000 in excess thereof.
57
The Company shall publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Purchase Date.
(3) The Change of Control provisions described above shall be applicable whether or not
any other provisions of this Indenture are applicable.
(4) Prior to complying with any of the provisions of this Section 5.15, but in any
event no later than the Change of Control Purchase Date, the Company or any Guarantor must
either repay all of its other outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing such Senior Debt to permit the repurchase of Notes
required by this Section 5.15.
(5) Notwithstanding the other provisions of this Section 5.15, the Company shall not be
required to make a Change of Control Offer following a Change of Control if (A) a third
party makes the Change of Control Offer in the manner, at the time and otherwise in
compliance with the requirements set forth in this Indenture applicable to a Change of
Control Offer made by the Company and purchases all Notes properly tendered and not
withdrawn under such Change of Control Offer or (B) notice of redemption has been given
pursuant to this Indenture, unless and until there is a default in payment of the applicable
redemption price.
(6) A Change of Control Offer may be made in advance of a Change of Control, and
conditioned upon the occurrence of the Change of Control, if a definitive agreement is in
place for the Change of Control at the time of making the Change of Control Offer.
(7) In the event that Holders of not less than 90% of the aggregate principal amount of
the outstanding Notes accept a Change of Control Offer and the Company (or the third party
making the Change of Control Offer as provided above) purchases all of the Notes held by
such Holders, the Company will have the right, upon not less than 30 nor more than 60 days
prior notice, given not more than 30 days following the purchase pursuant to the Change of
Control Offer described above, to redeem all of the Notes that remain outstanding following
such purchase at a redemption price equal to the Change of Control Payment plus, to the
extent not included in the Change of Control Payment, accrued and unpaid interest on the
notes that remain outstanding, to the date of redemption (subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that
is on or prior to the redemption date).
Section 5.16. No Inducements.
The Company shall not, and the Company shall not permit any of its Subsidiaries, either
directly or indirectly, to pay (or cause to be paid) any consideration, whether by way of interest,
fee or otherwise, to any Beneficial Owner or Holder of the Notes for or as an inducement to any
consent to any waiver, supplement or amendment of any terms or provisions of this Indenture or the
Notes, unless such consideration is offered to be paid (or agreed to be paid) to all Beneficial
58
Owners and Holders of the Notes which so consent in the time frame set forth in the
solicitation documents relating to such consent.
Section 5.17. Permitted Business Activities.
The Company will not, and will not permit any Restricted Subsidiary to, engage in any business
other than a Permitted Business, except to such extent as would not be material to the Company and
its Restricted Subsidiaries taken as a whole.
Finance Corp. shall not incur Indebtedness unless (1) the Company is a co-obligor or guarantor
of such Indebtedness or (2) the net proceeds of such Indebtedness are loaned to the Company, used
to acquire outstanding debt securities issued by the Company or used to repay Indebtedness of the
Company as permitted under Section 5.09. Finance Corp. shall not engage in any business not
related directly or indirectly to obtaining money or arranging financing for the Company or its
Restricted Subsidiaries.
Section 5.18. Sale and Leaseback Transactions.
The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into
any Sale and Leaseback Transaction; provided, however, that the Company or any of its Restricted
Subsidiaries may enter into a Sale and Leaseback Transaction if:
(1) the Company or that Restricted Subsidiary, as applicable, could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale and leaseback
transaction under the Fixed Charge Coverage Ratio test in the first paragraph of Section
5.09 and (b) incurred a Lien to secure such Indebtedness pursuant to Section 5.12;
(2) the gross cash proceeds of that Sale and Leaseback Transaction are at least equal
to the fair market value, as determined in good faith by the Board of Directors of the
Company and set forth in an Officers Certificate delivered to the Trustee, of the property
that is the subject of that Sale and Leaseback Transaction; and
(3) the transfer of assets in that Sale and Leaseback Transaction is permitted by, and
the Company applies the proceeds of such transaction in compliance with, Section 5.10.
Section 5.19. Covenant Termination.
If at any time (a) the rating assigned to the Notes by both S&P and Moodys is an Investment
Grade Rating and (b) no Default has occurred and is continuing under this Indenture, the Company
and its Restricted Subsidiaries will no longer be subject to the provisions of Sections 4.09, 5.07,
5.08, 5.09, 5.10, 5.11, 5.17, clauses (1)(a) and (3) of Section 5.18, and clause (d) of Section
6.01 of this Indenture. However, the Company and its Restricted Subsidiaries will remain subject
to all of the other provisions of this Indenture.
59
Section 5.20. Designation of Restricted and Unrestricted Subsidiaries.
The Board of Directors of the Company may designate any Restricted Subsidiary of the Company
to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted
Subsidiary of the Company is designated as an Unrestricted Subsidiary, the aggregate fair market
value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the
Subsidiary properly designated will be deemed to be either an Investment made as of the time of the
designation that will reduce the amount available for Restricted Payments under the first paragraph
of Section 5.07 or represent Permitted Investments, as determined by the Company. That designation
shall only be permitted if the Investment would be permitted at that time and if the Subsidiary so
designated otherwise meets the definition of an Unrestricted Subsidiary.
The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to
be a Restricted Subsidiary of the Company; provided that such designation will be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding
Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1)
such Indebtedness is permitted under Section 5.09, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-quarter reference period, and (2) no Default
or Event of Default would be in existence following such designation.
ARTICLE 6
SUCCESSORS
Section 6.01. Merger, Consolidation, or Sale of Assets.
Neither of the Issuers may, directly or indirectly, (1) consolidate or merge with or into
another Person (whether or not such Issuer is the survivor), or (2) sell, assign, transfer, lease,
convey or otherwise dispose of all or substantially all of its properties or assets in one or more
related transactions to another Person, unless:
(a) either (1) such Issuer is the survivor or (2) the Person formed by or surviving any
such consolidation or merger (if other than such Issuer ) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made is a Person organized
or existing under the laws of the United States, any state of the United States or the
District of Columbia; provided, however, that Finance Corp. may not consolidate or merge
with or into any Person other than a corporation satisfying such requirement so long as the
Company is not a corporation;
(b) the Person formed by or surviving any such consolidation or merger (if other than
such Issuer) or the Person to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made assumes all the obligations of such Issuer under the
Notes and this Indenture pursuant to a supplemental indenture or other agreement in a form
reasonably satisfactory to the Trustee;
(c) immediately after such transaction no Default or Event of Default exists;
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(d) in the case of a transaction involving the Company and not Finance Corp., either;
(i) the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or to which such sale, assignment, transfer,
lease, conveyance or other disposition shall have been made will, on the date of
such transaction after giving pro forma effect thereto and any related financing
transactions as if the same had occurred at the beginning of the applicable
four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of
Section 5.09 hereof; or
(ii) immediately after giving effect to such transaction and any related
financing transactions on a pro forma basis as if the same had occurred at the
beginning of the Companys most recently ended four full quarters for which internal
financial statements are available immediately preceding the date of the
transactions, the Fixed Charge Coverage Ratio of the Company or the Person formed by
or surviving any such consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or other disposition has
been made will be equal to or greater than the Fixed Charge Coverage Ratio of the
Company immediately before such transactions; and
(e) such Issuer has delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or disposition and such supplemental
indenture (if any) comply with this Indenture.
Notwithstanding the preceding paragraph of this Section 6.01, the Company may reorganize as
any other form of entity in accordance with the following procedures provided that:
(1) the reorganization involves the conversion (by merger, sale, contribution or
exchange of assets or otherwise) of the Company into a form of entity other than a limited
liability company formed under Delaware law;
(2) the entity so formed by or resulting from such reorganization is an entity
organized or existing under the laws of the United States, any state thereof or the District
of Columbia;
(3) the entity so formed by or resulting from such reorganization assumes all the
obligations of the Company under the Notes and this Indenture pursuant to agreements
reasonably satisfactory to the Trustee;
(4) immediately after such reorganization no Default or Event of Default exists; and
(5) such reorganization is not materially adverse to the Holders or Beneficial Owners
of the Notes (for purposes of this clause (5) a reorganization will not be considered
materially adverse to the Holders or Beneficial Owners of the Notes solely because the
successor or survivor of such reorganization (a) is subject to federal or state
61
income taxation as an entity or (b) is considered to be an includible corporation of
an affiliated group of corporations within the meaning of Section 1504(b) of the Code or any
similar state or local law).
Section 6.02. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or
other disposition of all or substantially all of the properties or assets of an Issuer in
accordance with Section 6.01 hereof, the successor formed by such consolidation or into or with
which such Issuer is merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and may exercise every right and power of, such Issuer under
this Indenture with the same effect as if such successor had been named as such Issuer herein and
shall be substituted for such Issuer (so that from and after the date of such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this
Indenture referring to the Company or Finance Corp., as the case may be, shall refer instead to
the successor and not to the Company or Finance Corp., as the case may be); and thereafter, if an
Issuer is dissolved following a transfer of all or substantially all of its properties or assets in
accordance with this Indenture, it shall be discharged and released from all obligations and
covenants under this Indenture and the Notes. The Trustee shall enter into a supplemental
indenture to evidence the succession and substitution of such successor and such discharge and
release of such Issuer.
ARTICLE 7
DEFAULTS AND REMEDIES
Section 7.01. Events of Default.
An Event of Default occurs if one of the following shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be involuntary or be effected
by operation of law):
(a) an Issuer defaults in the payment when due of interest with respect to the Notes
and such default continues for a period of 30 days;
(b) an Issuer defaults in the payment of the principal of or premium, if any, on the
Notes when due at its Stated Maturity, upon optional redemption, upon required repurchase,
upon declaration or otherwise;
(c) the Company fails to comply with the provisions of Section 4.09, 5.10, 5.15 or 6.01
hereof;
(d) the Company fails to comply with the provisions of Section 5.03 for 90 days after
notice to the Company by the Trustee or the Holders of at least 25% in principal amount of
the Notes then outstanding of such failure;
(e) the Company fails to comply with any other covenant or other agreement in this
Indenture or the Notes for 60 days after notice to the Company by the Trustee or
62
the Holders of at least 25% in principal amount of the Notes then outstanding of such
failure;
(f) a default occurs under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for money borrowed
by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed
by the Company or any of its Restricted Subsidiaries), whether such Indebtedness or
guarantee now exists, or is created after the Issue Date, if such default:
(1) is caused by a failure to pay principal of, or interest or premium, if any,
on such Indebtedness prior to the expiration of the grace period provided in such
Indebtedness (a Payment Default); or
(2) results in the acceleration of such Indebtedness prior to its Stated
Maturity
and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default
or the maturity of which has been so accelerated, aggregates $20.0 million or more;
provided, however, that if any such Payment Default is cured or waived or any such
acceleration rescinded, or such Indebtedness is repaid, within a period of 60 days from the
continuation of such Payment 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;
(g) the Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $20.0 million (to the extent not covered by insurance by a
reputable and creditworthy insurer as to which the insurer has not disclaimed coverage),
which judgments are not paid, discharged or stayed for a period of 60 days;
(h) except as permitted by this Indenture, any Subsidiary Guarantee is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full
force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under its Subsidiary Guarantee; and
(i) the Company, Finance Corp., any of the Companys Restricted Subsidiaries that is a
Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary of the Company pursuant to
or within the meaning of Bankruptcy Law:
(1) commences a voluntary case,
(2) consents in writing to the entry of an order for relief against it in an
involuntary case,
(3) consents in writing to the appointment of a Custodian of it or for all or
substantially all of its property,
63
(4) makes a general assignment for the benefit of its creditors, or
(5) admits in writing it generally is not paying its debts as they become due;
or
(j) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:
(1) is for relief against the Company, Finance Corp., any of the Companys
Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company in an involuntary case;
(2) appoints a Custodian of the Company, Finance Corp., any of the Companys
Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company or for all or substantially all of the
property of the Company, Finance Corp., any of the Companys Restricted Subsidiaries
that is a Significant Subsidiary of the Company or any group of Restricted
Subsidiaries of the Company, that, taken together, would constitute a Significant
Subsidiary of the Company; or
(3) orders the liquidation of the Company, Finance Corp., any of the Companys
Restricted Subsidiaries that is a Significant Subsidiary of the Company or any group
of Restricted Subsidiaries of the Company that, taken together, would constitute a
Significant Subsidiary of the Company;
and the order or decree remains unstayed and in effect for 60 consecutive days.
Section 7.02. Acceleration.
If any Event of Default occurs and is continuing, the Trustee, by notice to the Issuers, or
the Holders of at least 25% in principal amount of the then outstanding Notes, by written notice to
the Issuers and the Trustee, may declare all the Notes to be due and payable immediately. Upon any
such declaration, the Notes shall become due and payable immediately, together with all accrued and
unpaid interest, if any, and premium, if any, thereon. Notwithstanding the preceding, if an Event
of Default specified in clause (i) or (j) of Section 7.01 hereof occurs with respect to the
Company, Finance Corp., any of the Companys Restricted Subsidiaries that is a Significant
Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken
together, would constitute a Significant Subsidiary of the Company, all outstanding Notes shall
become immediately due and payable without further action or notice, together with all accrued and
unpaid interest, if any, and premium, if any, thereon. The Holders of a majority in principal
amount of the then outstanding Notes by written notice to the Trustee may on behalf of all of the
Holders rescind an acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except with respect to nonpayment of
principal, interest or premium, if any, that have become due solely because of the acceleration)
have been cured or waived.
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Section 7.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of, premium, if any, and interest on the Notes or to enforce
the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 7.04. Waiver of Past Defaults.
Holders of a majority in principal amount of the then outstanding Notes 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 hereunder, except a continuing Default or Event of Default in the
payment of the principal of or premium, if any, or interest on the Notes (including in connection
with an offer to purchase). Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 7.05. Control by Majority.
Holders of a majority in principal amount of the then outstanding Notes may direct the time,
method and place of conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture or that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the Trustee in personal
liability.
Section 7.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a continuing Event of
Default;
(b) the Holders of at least 25% in principal amount of the then outstanding Notes make
a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested, provide to the
Trustee indemnity or security satisfactory to the Trustee against any loss, liability or
expense;
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(d) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a majority in principal amount of the then
outstanding Notes do not give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a Note
or to obtain a preference or priority over another Holder of a Note.
Section 7.07. Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, premium, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an offer to purchase), or
to bring suit for the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 7.08. Collection Suit by Trustee.
If an Event of Default specified in Section 7.01(a) or (b) occurs and is continuing, the
Trustee is authorized to recover judgment in its own name and as trustee of an express trust
against the Issuers and the Guarantors for the whole amount of principal of, premium, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 7.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuers
(or any other obligor upon the Notes), their creditors or their property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 8.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 8.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee
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to authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 7.10. Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 8.07
hereof, including payment of all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the Trustees costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal, premium, if any, and
interest, respectively; and
Third: to the Issuers or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 7.10.
Section 7.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section 7.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 8
TRUSTEE
Section 8.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
its exercise, as a prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of
this Indenture and the Trustee need perform only those duties that are specifically set
forth in this Indenture and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 7.05
hereof.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 8.01.
(e) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with an Issuer. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 8.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate
or an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such Officers Certificate or Opinion of Counsel. The Trustee
may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
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(c) The Trustee may act through its attorneys and agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
that it believes to be authorized or within the rights or powers conferred upon it by this
Indenture, and the Trustee shall not be liable for any special, indirect, consequential or punitive
loss or damage (including but not limited to lost profits).
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from an Issuer shall be sufficient if signed by an Officer of such Issuer.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by this Indenture at the request or direction of any of the Holders unless such Holder shall
have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities that might be incurred by it in compliance with such request or direction.
(g) The Trustee shall have no duty to inquire as to the performance of the Companys covenants
in Article 5 hereof. In addition, the Trustee shall not be deemed to have knowledge of any Default
or Event of Default except: (1) any Event of Default occurring pursuant to Section 7.01(a) or
7.01(b) hereof; or (2) any Default or Event of Default of which a Responsible Officer shall have
received written notification or obtained actual knowledge.
(h) The permissive right of the Trustee to act hereunder shall not be construed as a duty.
(i) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder and in its capacity as Trustee
under any other agreement executed in connection with this Indenture to which the Trustee is a
party.
Section 8.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Issuers, any Guarantor or any Affiliate of the Company with the
same rights it would have if it were not Trustee. However, in the event that the Trustee acquires
any conflicting interest (as defined in the TIA) after a Default has occurred and is continuing, it
must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee
or resign. Any Agent may do the same with like rights and duties. The Trustee is also subject to
Sections 8.10 and 8.11 hereof.
Section 8.04. Trustees Disclaimer.
The Trustee shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for either Issuers use of the
proceeds from the Notes or any money paid to an Issuer or upon either Issuers direction under any
provision of this Indenture, it shall not be responsible for the use or application of any
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money received by any Paying Agent other than the Trustee, and it shall not be responsible for
any statement or recital herein or any statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 8.05. Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default or Event of Default in payment of principal
of or premium, if any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that withholding the notice is
in the interests of the Holders of the Notes.
Section 8.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also shall comply with TIA § 313(b)(2) and §
313(b)(1). The Trustee shall also transmit by mail all reports as required by TIA § 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall be mailed to
the Issuers and filed with the SEC and each stock exchange on which the Notes are listed in
accordance with TIA § 313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 8.07. Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such reasonable compensation as the
Issuers and the Trustee may agree in writing for the Trustees acceptance of this Indenture and
services hereunder. The Trustees compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Issuers shall reimburse the Trustee promptly upon request for
all reasonable disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include, without limitation, the reasonable
compensation, disbursements and expenses of the Trustees agents and counsel.
The Issuers and the Guarantors shall indemnify the Trustee, jointly and severally, against any
and all losses, liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the costs and expenses
of enforcing this Indenture against the Issuers and the Guarantors (including this Section 8.07)
and defending itself against any claim (whether asserted by an Issuer, any Guarantor or any Holder
or any other Person) or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence, bad faith or willful misconduct. The Trustee shall notify the
Issuers and the Guarantors promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Issuers and the Guarantors shall not relieve the Issuers or the Guarantors
of their obligations hereunder. The Issuers and the Guarantors shall defend the claim
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and the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the
Issuers and the Guarantors shall pay the reasonable fees and expenses of such counsel; provided
that the Issuers and the Guarantors will not be required to pay such fees and expenses if they
assume the Trustees defense with counsel acceptable to and approved by the Trustee (such approval
not to be unreasonably withheld) and there is no conflict of interest between the Issuers and the
Trustee in connection with such defense. The Issuers and the Guarantors need not pay for any
settlement made without their consent, which consent shall not be unreasonably withheld. Neither
the Issuers nor the Guarantors need reimburse the Trustee for any expense or indemnity against any
liability or loss of the Trustee to the extent such expense, liability or loss is attributable to
the negligence, bad faith or willful misconduct of the Trustee.
The obligations of the Issuers and the Guarantors under this Section 8.07 shall survive the
satisfaction and discharge of this Indenture.
To secure the Issuers and the Guarantors payment obligations in this Section 8.07, the
Trustee shall have a Lien prior to the Notes on all money or property held or collected by the
Trustee, except that held in trust to pay principal and interest on particular Notes. Such Lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 7.01(i) or (j) hereof occurs, the expenses and the compensation for the services (including
the fees and expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
Section 8.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section.
The Trustee may resign in writing upon 30 days notice at any time and be discharged from the
trust hereby created by so notifying the Issuers. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the
Issuers in writing and may appoint a successor trustee with the consent of the Issuers. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a receiver, Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuers shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
If a successor Trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Issuers or the Holders of Notes of at least 10% in
principal amount of the then outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note who has been a Holder of a Note
for at least six months, fails to comply with Section 8.10 hereof, such Holder of a Note may
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to
Holders of the Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee hereunder have been paid
and subject to the Lien provided for in Section 8.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 8.08, the Issuers and the Guarantors obligations under Section
8.07 hereof shall continue for the benefit of the retiring Trustee.
Section 8.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation without any further
act shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail a
notice of its succession to the Issuers and the Holders of the Notes.
Section 8.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100
million as set forth in its most recent published annual report of condition.
This
Indenture shall always have a Trustee who satisfies the requirements
of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA
§ 310(b).
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Section 8.11. Preferential Collection of Claims Against Issuers.
The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.
ARTICLE 9
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 9.01. Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at the option of their respective Boards of Directors evidenced by a
resolution set forth in an Officers Certificate, at any time, exercise their rights under either
Section 9.02 or 9.03 hereof with respect to all outstanding Notes upon compliance with the
conditions set forth below in this Article 9.
Section 9.02. Legal Defeasance and Discharge.
Upon the Issuers exercise under Section 9.01 hereof of the option applicable to this Section
9.02, the Issuers shall, subject to the satisfaction of the conditions set forth in Section 9.04
hereof, be deemed to have discharged their obligations with respect to all outstanding Notes, and
each Guarantor shall be deemed to have discharged its obligations with respect to its Subsidiary
Guarantee, on the date the conditions set forth in Section 9.04 below are satisfied (hereinafter,
Legal Defeasance). For this purpose, Legal Defeasance means that the Issuers shall be deemed to
have paid and discharged the entire Indebtedness represented by the outstanding Notes, and each
Guarantor shall be deemed to have paid and discharged its Subsidiary Guarantee (which in each case
shall thereafter be deemed to be outstanding only for the purposes of Section 9.05 hereof and the
other Sections of this Indenture referred to in (a) and (b) below) and to have satisfied all its
other obligations under such Notes or Subsidiary Guarantee and this Indenture (and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments acknowledging the
same), except for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive solely from the
trust fund described in Section 9.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes when such payments are
due, (b) the Issuers obligations with respect to such Notes under Sections 3.06, 3.07, 3.09, 3.14
and 5.02 hereof, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and
the Issuers and the Guarantors obligations in connection therewith and (d) the Legal Defeasance
provisions of this Article 9. Subject to compliance with this Article 9, the Issuers may exercise
their option under this Section 9.02 notwithstanding the prior exercise of its option under Section
9.03 hereof.
If the Issuers exercise their Legal Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee, and any security for the Notes (other
than the trust) will be released.
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Section 9.03. Covenant Defeasance.
Upon the Issuers exercise under Section 9.01 hereof of the option applicable to this Section
9.03, the Issuers shall, subject to the satisfaction of the conditions set forth in Section 9.04
hereof, be released from their obligations under the covenants contained in Article 5 (other than
those in Sections 5.01, 5.02, 5.06 and 5.14) and in clause (d) of Section 6.01 hereof on and after
the date the conditions set forth below are satisfied (hereinafter, Covenant Defeasance), and the
Notes shall thereafter be deemed not outstanding for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any thereof) in connection with
such covenants, but shall continue to be deemed outstanding for all other purposes hereunder (it
being understood that such Notes shall not be deemed outstanding for accounting purposes). For
this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuers
and any Guarantor may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 7.01 hereof, but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition,
upon the Issuers exercise under Section 9.01 hereof of the option applicable to this Section 9.03
hereof, subject to the satisfaction of the conditions set forth in Section 9.04 hereof, Sections
7.01(f) through 7.01(h) hereof shall not constitute Events of Default.
If the Issuers exercise their Covenant Defeasance option, each Guarantor will be released and
relieved of any obligations under its Subsidiary Guarantee and any security for the Notes (other
than the trust) will be released.
Section 9.04. Conditions to Legal or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Issuers must irrevocably deposit with the Trustee, in trust, for the benefit of
the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants, to pay the principal of and premium, if any, and
interest on the outstanding Notes on the date of fixed maturity or on the applicable
redemption date, as the case may be, and the Issuers must specify whether the Notes are
being defeased to the date of fixed maturity or to a particular redemption date;
(b) in the case of an election under Section 9.02 hereof, the Issuers shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that:
(1) the Issuers have received from, or there has been published by, the
Internal Revenue Service a ruling; or
(2) since the Issue Date, there has been a change in the applicable federal
income tax law,
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in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 9.03 hereof, the Issuers shall have
delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of
such deposit (other than a Default or Event of Default resulting from the incurrence of
Indebtedness or the grant of Liens securing such Indebtedness, all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article 9 concurrently
with such incurrence or within 30 days thereof);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any material agreement or instrument (other
than this Indenture) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;
(f) the Issuers shall have delivered to the Trustee an Officers Certificate stating
that the deposit was not made by the Issuers with the intent of preferring the Holders over
any other creditors of the Issuers or with the intent of defeating, hindering, delaying or
defrauding creditors of the Issuers or others; and
(g) the Issuers shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 9.05. Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous
Provisions.
Subject to Section 9.06 hereof, all money and non-callable Government Securities (including
the proceeds thereof) deposited with the Trustee pursuant to Section 9.04 or 9.08 hereof in respect
of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or through any Paying
Agent (including the Company or any of its Subsidiaries acting as Paying Agent) as the Trustee may
determine, to the Holders of such Notes of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuers shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the cash or non-callable Government Securities deposited pursuant to Section
9.04 or 9.08 hereof or the principal and interest received in respect thereof
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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 9 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 non-callable
Government Securities held by it as provided in Section 9.04 or 9.08 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
9.04(a) hereof), are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance, Covenant Defeasance or Discharge, as the case may be.
Section 9.06. Repayment to Issuers.
Subject to applicable escheat and abandoned property laws, any money or non-callable
Government Securities deposited with the Trustee or any Paying Agent, or then held by an Issuer, in
trust for the payment of the principal of or premium, if any, or interest on any Note and remaining
unclaimed for two years after such principal, premium, if any, or interest has become due and
payable shall be paid to the Issuers on their written request or (if then held by an Issuer) shall
be discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured
creditor, look only to the Issuers for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money or non-callable Government Securities, and all
liability of the Issuers as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Issuers cause to be published once, in the New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such notification or publication,
any unclaimed balance of such money then remaining will be repaid to the Issuers.
Section 9.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or non-callable Government
Securities in accordance with Section 9.05 hereof, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such application, then
the Issuers obligations under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.02 or 9.03 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with Section 9.05
hereof; provided, however, that, if an Issuer makes any payment of principal of or premium, if any,
or interest on any Note following the reinstatement of its obligations, such Issuer shall be
subrogated to the rights of the Holders of such Notes to receive such payment from the money held
by the Trustee or Paying Agent.
Section 9.08. Discharge.
This Indenture shall be satisfied and discharged and shall cease to be of further effect as to
all Notes issued hereunder (except for (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in clause (b) of this Section 9.08, and as more fully set
forth
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in such clause (b), payments in respect of the principal of, premium, if any, and interest on
such Notes when such payments are due, (b) the Issuers obligations with respect to such Notes
under Sections 3.06, 3.07, 3.09, 3.14 and 5.02 hereof and (c) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Issuers obligations in connection therewith),
when:
(1) either:
(a) all Notes that have been authenticated, except lost, stolen or destroyed Notes that
have been replaced or paid and Notes for whose payment money has been deposited in trust and
thereafter repaid to the Issuers, have been delivered to the Trustee for cancellation; or
(b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable or will become due and payable within one year by reason of the mailing of a
notice of redemption or otherwise, and the Issuers or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust solely for the
benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a
combination of cash in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient without consideration of any reinvestment of interest, to pay and
discharge the entire indebtedness on the Notes not delivered to the Trustee for cancellation
for principal, premium, if any, and accrued interest to the date of fixed maturity or
redemption;
(2) no Default or Event of Default has occurred and is continuing on the date of the deposit
or will occur as a result of the deposit (other than a Default or Event of Default resulting from
the incurrence of Indebtedness or the grant of Liens securing such Indebtedness, all or a portion
of the proceeds of which will be used to fund such deposit concurrently with such incurrence or
within 30 days thereof) and the deposit will not result in a breach or violation of, or constitute
a default under, any material agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(3) the Issuers or any Guarantor has paid or caused to be paid all sums payable by it under
this Indenture;
(4) the Issuers have delivered irrevocable instructions to the Trustee to apply the deposited
money toward the payment of the Notes at fixed maturity or the redemption date, as the case may be;
and
(5) the Issuers have delivered an Officers Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge of this Indenture
(Discharge) have been satisfied.
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ARTICLE 10
AMENDMENT, SUPPLEMENT AND WAIVER
Section 10.01. Without Consent of Holders of Notes.
Notwithstanding Section 10.02 of this Indenture, the Issuers, the Guarantors and the Trustee
may amend or supplement this Indenture or the Notes without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(c) to provide for the assumption of an Issuers obligations to the Holders of Notes
pursuant to Article 6 hereof;
(d) 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 hereunder of any
Holder, provided that any change to conform this Indenture to the Prospectus shall not be
deemed to adversely affect the legal rights hereunder of any Holder;
(e) to secure the Notes or the Subsidiary Guarantees pursuant to the requirements of
Section 5.12 or otherwise;
(f) to provide for the issuance of Additional Notes in accordance with the limitations
set forth in this Indenture;
(g) to add any additional Guarantor with respect to the Notes or to evidence the
release of any Guarantor from its Subsidiary Guarantee in accordance with Section 5.13 or
Article 11 hereof;
(h) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA; or
(i) to evidence or provide for the acceptance of appointment under this Indenture of a
successor Trustee.
Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 10.06 hereof, the Trustee shall join with the Issuers
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.
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Section 10.02. With Consent of Holders of Notes.
Except as provided above in Section 10.01 and below in this Section 10.02, the Issuers, the
Guarantors and the Trustee may amend or supplement this Indenture and the Notes may be amended or
supplemented with the consent of the Holders of at least a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a purchase of, or tender offer or
exchange offer for, Notes), and, subject to Sections 7.04 and 7.07 hereof, any existing Default or
Event of Default or compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a purchase of, tender offer or exchange offer for
Notes). However, without the consent of each Holder affected, an amendment, supplement or waiver
may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or alter any of the
provisions with respect to the redemption or repurchase of the Notes (except as provided in
Sections 4.09, 5.10 and 5.15 hereof);
(c) reduce the rate of or change the time for payment of interest on any Note;
(d) waive a Default or Event of Default in the payment of principal of or premium, if any, or
interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least
a majority in principal amount of the Notes and a waiver of the payment default that resulted from
such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to waivers of past Defaults
or Events of Default or the rights of Holders of Notes to receive payments of principal of or
premium, if any, or interest on the Notes (except as permitted in clause (g) below);
(g) waive a redemption or repurchase payment with respect to any Note (other than a payment
required by Sections 4.09, 5.10 and 5.15 hereof);
(h) release any Guarantor from any of its obligations under its Subsidiary Guarantee or this
Indenture, except in accordance with the terms of this Indenture; or
(i) make any change in the preceding amendment, supplement and waiver provisions.
Upon the request of the Issuers accompanied by Board Resolutions authorizing their execution
of any such amended or supplemental indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt
by the Trustee of the documents described in Section 10.06 hereof, the Trustee shall join with the
Issuers and the Guarantors in the execution of such amended or supplemental indenture, unless such
amended or supplemental indenture affects the Trustees own rights,
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duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this Section 10.02 to
approve the particular form of any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section becomes effective, the Company
shall mail to the Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.
Section 10.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Notes shall be set forth in an amended
or supplemental Indenture that complies with the TIA as then in effect.
A consent to any amendment, supplement or waiver under this Indenture by any Holder given in
connection with a purchase, tender or exchange of such Holders Notes shall not be rendered invalid
by such purchase, tender or exchange.
Section 10.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holders Note, even if notation of
the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written notice of revocation
before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment, supplement or waiver. If a record
date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to consent to such amendment or waiver or revoke any consent previously
given, whether or not such Persons continue to be Holders after such record date. No consent shall
be valid or effective for more than 90 days after such record date except to the extent that the
requisite number of consents to the amendment, supplement or waiver have been obtained within such
90-day period or as set forth in the next paragraph of this Section 10.04.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it makes a change described in any of clauses (a) through (i) of Section 10.02, in which case, the
amendment, supplement or waiver shall bind only each Holder of a Note who has
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consented to it and every subsequent Holder of a Note or portion of a Note that evidences the
same indebtedness as the consenting Holders Note.
Section 10.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Issuers, in exchange for all Notes, may issue and the Trustee
shall authenticate new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
Section 10.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized pursuant to this
Article 10 if the amendment or supplement does not adversely affect the rights, duties, liabilities
or immunities of the Trustee. In executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 9.01) shall be fully protected in relying
upon, an Officers Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture and that all conditions
precedent are satisfied.
ARTICLE 11
GUARANTEES OF NOTES
Section 11.01. Subsidiary Guarantees.
Subject to this Article 11, each of the Guarantors hereby, jointly and severally,
unconditionally guarantees, on a senior unsecured basis, to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes held thereby and the Obligations of the
Issuers hereunder and thereunder, that: (a) the principal of, premium, if any, and interest on the
Notes will be promptly paid in full when due, subject to any applicable grace period, whether at
Stated Maturity, by acceleration, upon repurchase or redemption or otherwise, and interest on the
overdue principal of and premium, if any, and (to the extent permitted by law) interest on the
Notes, and all other payment Obligations of the Issuers to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full and performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any Notes or any of such
other Obligations, the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, subject to any applicable grace period, whether at Stated
Maturity, by acceleration, upon repurchase or redemption or otherwise. Failing payment when so due
of any amount so guaranteed for whatever reason, the Guarantors will be jointly and severally
obligated to pay the same immediately. An Event of Default under this Indenture or the Notes shall
constitute an event of default under the Subsidiary Guarantees, and shall entitle the Holders to
accelerate the obligations of the Guarantors hereunder in the same manner and to the same extent as
the Obligations of the Issuers.
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The Guarantors hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder with respect to any
provisions hereof or thereof, the recovery of any judgment against an Issuer, any action to enforce
the same or any other circumstance (other than complete performance) which might otherwise
constitute a legal or equitable discharge or defense of a Guarantor. Each Guarantor further, to
the extent permitted by law, hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of insolvency or bankruptcy of an Issuer, any right to require a
proceeding first against an Issuer, protest, notice and all demands whatsoever and covenants that
its Subsidiary Guarantee will not be discharged except by complete performance of the Obligations
contained in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to return to an Issuer, the
Guarantors, or any Custodian, Trustee or other similar official acting in relation to any of the
Issuers or the Guarantors, any amount paid by an Issuer or any Guarantor to the Trustee or such
Holder, the Subsidiary Guarantees, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Guarantor agrees that it shall not be entitled to, and hereby waives,
any right of subrogation in relation to the Holders in respect of any Obligations guaranteed
hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the
Holders and the Trustee, on the other hand, (a) the maturity of the Obligations guaranteed hereby
may be accelerated as provided in Article 7 hereof for the purposes of its Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect
of the Obligations guaranteed thereby, and (b) in the event of any declaration of acceleration of
such Obligations as provided in Article 7 hereof, such Obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of its Subsidiary
Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor
so long as the exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantees.
Section 11.02. [Reserved].
Section 11.03. Guarantors May Consolidate, etc., on Certain Terms.
(a) No Guarantor shall sell or otherwise dispose of all or substantially all of its properties
or assets to, or consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person), another Person (other than the Company or another Guarantor), unless, (i) either
(1) the Person acquiring the properties or assets in any such sale or other disposition or the
Person formed by or surviving any such consolidation or merger (if other than such Guarantor)
unconditionally assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture, substantially in the form of Exhibit C hereto, under the Notes, this Indenture and its
Subsidiary Guarantee, or (2) such sale or other disposition does not violate the provisions of
Section 5.10, and (ii) immediately after giving effect to such transaction, no Default or Event of
Default exists.
(b) In the case of any such consolidation or merger and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee, of the
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Subsidiary Guarantee and the due and punctual performance of all of the covenants of this
Indenture to be performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor.
Section 11.04. Releases of Subsidiary Guarantees.
The Subsidiary Guarantee of a Guarantor shall be released: (1) in connection with any sale or
other disposition of all or substantially all of the properties or assets of such Guarantor
(including by way of merger or consolidation) to a Person that is not (either before or after
giving effect to such transaction) a Restricted Subsidiary of the Company, if the sale or other
disposition does not violate the provisions of Section 5.10; (2) in connection with any sale or
other disposition of the Capital Stock of such Guarantor to a Person that is not (either before or
after giving effect to such transaction) a Restricted Subsidiary of the Company, if the sale or
other disposition does not violate the provisions of Section 5.10 and the Guarantor ceases to be a
Restricted Subsidiary of the Company as a result of such sale or disposition; (3) if the Company
designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with Section 5.20 of this Indenture; (4) upon Legal Defeasance or Covenant Defeasance or
Discharge in accordance with Article 9; or (5) at such time as such Guarantor ceases to guarantee
any other Indebtedness of either of the Issuers and any Indebtedness of any other Guarantor,
provided that it is then no longer an obligor with respect to any Indebtedness under any Credit
Facility.
Upon delivery by the Company to the Trustee of an Officers Certificate to the effect that any
of the conditions described in the foregoing clauses (1) (5) has occurred, the Trustee shall
execute any documents reasonably requested by the Company in order to evidence the release of any
Guarantor from its obligations under its Subsidiary Guarantee. Any Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain liable for the full amount of principal of
and premium, if any, and interest on the Notes and for the other obligations of such Guarantor
under this Indenture as provided in this Article 11.
Section 11.05. Notation of Subsidiary Guarantee.
To evidence its Subsidiary Guarantee set forth in Section 11.01, each Guarantor hereby agrees
that a notation of such Subsidiary Guarantee substantially in the form attached as Exhibit B hereto
will be endorsed by manual or facsimile signature by an Officer of such Guarantor on each Note
authenticated and delivered by the Trustee.
Each Guarantor hereby agrees that its Subsidiary Guarantee set forth in Section 11.01 will
remain in full force and effect notwithstanding any failure to endorse on each Note a notation of
such Subsidiary Guarantee. If an Officer whose signature is on the notation of Subsidiary
Guarantee no longer holds that office at the time the Trustee authenticates the Note on which a
notation of Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of each
of the Guarantors.
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Section 11.06. Limitation on Guarantor Liability.
The obligations of each Guarantor under its Subsidiary Guarantee will be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such
Guarantor and after giving effect to any collections from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under its Subsidiary
Guarantee or pursuant to its contribution obligations under this Indenture, result in the
obligations of such Guarantor under its Subsidiary Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law and not otherwise being void or
voidable under any similar laws affecting the rights of creditors generally.
Section 11.07. Trustee to Include Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been appointed and be
then acting hereunder, the term Trustee as used in this Article 11 shall in each case (unless the
context shall otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully and for all intents and purposes as if such Paying Agent were named in
this Article 11 in place of the Trustee.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
TIA §318(c), such TIA-imposed duties shall control.
Section 12.02. Notices.
Any notice or communication by an Issuer, any Guarantor or the Trustee to the others is duly
given if in writing (in the English language) and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telecopier or overnight air courier
guaranteeing next day delivery, to the others address:
If to any of the Issuers or the Guarantors:
Copano Energy, L.L.C.
2727 Allen Parkway, Suite 1200
Houston, Texas 77019
Attention: Chief Financial Officer
Telecopier No.: (713) 737-9047
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with a copy to:
Vinson & Elkins L.L.P.
2500 First City Tower
1001 Fannin St.
Houston, Texas 77002-6760
Attention: Jeffrey K. Malonson
Telecopier No.: (713) 615-5627
If to the Trustee:
U.S. Bank National Association
EX-TX-DCRE
14241 Dallas Parkway, Suite 490
Dallas, Texas 75254
Attention: Corporate Trust Department
Telecopier No.: (972) 789-9605
An Issuer, any of the Guarantors or the Trustee, by notice to the others, may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged, if telecopied; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery in each case to the address shown above.
Any notice or communication to a Holder shall be mailed by first class mail, certified or
registered, return receipt requested, or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.
If either of the Issuers mails a notice or communication to Holders, it shall mail a copy to
the Trustee and each Agent at the same time.
Section 12.03. Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Notes. The Issuers, the Trustee, the Registrar and anyone else
shall have the protection of TIA § 312(c).
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Section 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by an Issuer to the Trustee to take any action under this
Indenture, such Issuer shall furnish to the Trustee:
(a) an Officers Certificate in form and substance reasonably satisfactory to the
Trustee (which shall include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee
(which shall include the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has read such
covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such person, such condition or
covenant has been satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 12.07. No Personal Liability of Directors, Officers, Employees and Unitholders.
No past, present or future director, officer, partner, employee, incorporator, manager or
unitholder or other owner of Capital Stock of the Issuers or any Guarantor, as such, shall have any
liability for any obligations of the Issuers or any Guarantor under the Notes, the Subsidiary
Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such
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obligations or their creation. 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.
Section 12.08. Governing Law.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK.
Section 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the
Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 12.10. Successors.
All agreements of the Issuers and the Guarantors in this Indenture and the Notes shall bind
their respective successors. All agreements of the Trustee in this Indenture shall bind its
successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.12. Evidence of Action by Holders.
Whenever in this Indenture it is provided that the Holders of a specified percentage in
aggregate principal amount of the Notes may take action (including the making of any demand or
request, the giving of any direction, notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of instruments of similar tenor
executed by Holders in person or by agent or proxy appointed in writing or (b) in the case of Notes
evidenced by a Global Note, by any electronic transmission or other message, whether or not in
written format, that complies with the Depositorys applicable procedures.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part of
this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
87
Section 12.14. Counterparts.
This Indenture may be signed in counterparts and by the different parties hereto in separate
counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same instrument.
[Signatures on following page]
88
Signatures
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Copano Energy, L.L.C. |
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By:
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/s/ Carl A. Luna |
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Carl A. Luna |
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Senior Vice President and Chief Financial Officer |
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Copano Energy Finance Corporation |
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By:
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/s/ Carl A. Luna |
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Carl A. Luna |
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Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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Guarantors |
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ACP TEXAS, L.L.C. |
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ALAMO CREEK PROPERTIES, L.L.C. |
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CANTERA GAS COMPANY LLC |
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CMW ENERGY SERVICES, L.L.C. |
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COPANO EAGLE FORD LLC |
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COPANO ENERGY SERVICES (TEXAS) GP, L.L.C. |
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COPANO ENERGY SERVICES GP, L.L.C. |
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COPANO ENERGY/MID-CONTINENT, L.L.C. |
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COPANO ENERGY/ROCKY MOUNTAINS, L.L.C. |
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COPANO FIELD FACILITIES/ROCKY MOUNTAINS, LLC |
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COPANO FIELD SERVICES GP, L.L.C. |
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COPANO FIELD SERVICES/CENTRAL GULF COAST GP, L.L.C. |
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COPANO FIELD SERVICES/NORTH TEXAS, L.L.C. |
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COPANO FIELD SERVICES/ROCKY MOUNTAINS, LLC |
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COPANO LIBERTY, LLC |
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COPANO NATURAL GAS/ROCKY MOUNTAINS, LLC |
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COPANO NGL SERVICES (MARKHAM), L.L.C. |
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COPANO NGL SERVICES GP, L.L.C. |
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COPANO PIPELINES (TEXAS) GP, L.L.C. |
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COPANO PIPELINES GP, L.L.C. |
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COPANO PIPELINES/NORTH TEXAS, L.L.C. |
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COPANO PIPELINES/ROCKY MOUNTAINS, LLC |
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COPANO PIPELINES/VICTORIA, L.L.C. |
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COPANO PROCESSING GP, L.L.C. |
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COPANO PROCESSING/LOUISIANA, LLC |
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COPANO/RED RIVER GATHERING GP, L.L.C. |
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COPANO/WEBB-DUVAL PIPELINE GP, L.L.C. |
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CPNO SERVICES GP, L.L.C. |
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ESTES COVE FACILITIES, L.L.C. |
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GREENWOOD GATHERING, L.L.C. |
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NUECES GATHERING, L.L.C. |
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RIVER VIEW PIPELINES, L.L.C. |
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SCISSORTAIL ENERGY, LLC |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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Copano Processing, L.P. |
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By
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Copano Processing GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano NGL Services, L.P. |
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By
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Copano NGL Services GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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CHC LP Holdings, L.L.C. |
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Copano Houston Central, L.L.C. |
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Copano Pipelines Group, L.L.C. |
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Copano/Red River Gathering LP Holdings, L.L.C. |
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CPG LP Holdings, L.L.C. |
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CPNO Services LP Holdings, L.L.C. |
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CWDPL LP Holdings, L.L.C. |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano General Partners, Inc. |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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Copano Field Services/Agua Dulce, L.P. |
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Copano Field Services/Copano Bay, L.P. |
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Copano Field Services/Karnes, L.P. |
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Copano Field Services/Live Oak, L.P. |
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Copano Field Services/South Texas, L.P. |
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Copano Field Services/Upper Gulf Coast, L.P. |
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By
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Copano Field Services GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Pipelines/Hebbronville, L.P. |
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Copano Pipelines/South Texas, L.P. |
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Copano Pipelines/Upper Gulf Coast, L.P. |
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By
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Copano Pipelines GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Pipelines/Texas Gulf Coast, L.P. |
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By
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Copano Pipelines (Texas) GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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Copano Field Services/Central Gulf Coast, L.P. |
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By
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Copano Field Services/Central Gulf
Coast GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Energy Services/Upper Gulf Coast, L.P.
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By
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Copano Energy Services GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Energy Services/Texas Gulf Coast, L.P.
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By
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Copano Energy Services (Texas) GP,
L.L.C., General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano/Webb-Duval Pipeline, L.P. |
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By
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Copano/Webb Duval Pipeline GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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CPNO Services, L.P. |
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Copano Risk Management, L.P. |
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By
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CPNO Services GP, L.L.C., General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Cimmarron Gathering, LP |
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By
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Copano/Red River Gathering GP, L.L.C.,
General Partner |
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By:
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/s/ Carl A. Luna |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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[Signature Page to Senior Indenture]
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U.S. Bank National Association, as Trustee |
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By:
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/s/ Israel Lugo |
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Name: Israel Lugo |
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Title: Vice President |
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[Signature Page to Senior Indenture]
Schedule A
Guarantors
Name
ACP Texas, L.L.C.
Alamo Creek Properties, L.L.C.
Cantera Gas Company, LLC
CHC LP Holdings, L.L.C.
Cimmarron Gathering, LP
CMW Energy Services, L.L.C.
Copano Eagle Ford LLC
Copano Energy/Mid-Continent, L.L.C.
Copano Energy/Rocky Mountains, L.L.C.
Copano Energy Services GP, L.L.C.
Copano Energy Services (Texas) GP, L.L.C.
Copano Energy Services/Texas Gulf Coast, L.P.
Copano Energy Services/Upper Gulf Coast, L.P.
Copano Field Facilities/Rocky Mountains, LLC
Copano Field Services/Agua Dulce, L.P.
Copano Field Services/Central Gulf Coast GP, L.L.C.
Copano Field Services/Central Gulf Coast, L.P.
Copano Field Services/Copano Bay, L.P.
Copano Field Services GP, L.L.C.
Copano Field Services/Karnes, L.P.
Copano Field Services/Live Oak, L.P.
Copano Field Services/North Texas, L.L.C.
Copano Field Services/Rocky Mountains, LLC
Copano Field Services/South Texas, L.P.
Copano Field Services/Upper Gulf Coast, L.P.
Copano Houston Central, L.L.C.
Copano Liberty, LLC
Copano General Partners, Inc.
Copano Natural Gas/Rocky Mountains, LLC
Copano NGL Services GP, L.L.C.
Copano NGL Services, L.P.
Copano NGL Services (Markham), L.L.C.
Copano Pipelines Group, L.L.C.
Copano Pipelines GP, L.L.C.
Copano Pipelines/Hebbronville, L.P.
Copano Pipelines/North Texas, L.L.C.
Copano Pipelines/Rocky Mountains, LLC
Copano Pipelines/South Texas, L.P.
Copano Pipelines (Texas) GP, L.L.C.
Copano Pipelines/Texas Gulf Coast, L.P.
Copano Pipelines/Upper Gulf Coast, L.P.
Schedule A-1
Name
Copano Pipelines/Victoria, L.L.C.
Copano Processing/Louisiana, LLC
Copano Processing GP, L.L.C.
Copano Processing, L.P.
Copano/Red River Gathering GP, L.L.C.
Copano/Red River Gathering LP Holdings, L.L.C.
Copano Risk Management, L.P.
Copano/Webb-Duval Pipeline GP, L.L.C.
Copano/Webb-Duval Pipeline, L.P.
CPG LP Holdings, L.L.C.
CPNO Services GP, L.L.C.
CPNO Services, L.P.
CPNO Services LP Holdings, L.L.C.
CWDPL LP Holdings, L.L.C.
Estes Cove Facilities, L.L.C.
Greenwood Gathering, L.L.C.
Nueces Gathering, L.L.C.
River View Pipelines, L.L.C.
ScissorTail Energy, LLC
Schedule A-2
Exhibit A
FORM OF NOTE
(Face of Note)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS NOTE IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE ISSUERS OR THEIR AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.(1)
CUSIP No. 217203AE8
ISIN No. US217203AE82
COPANO ENERGY, L.L.C.
COPANO ENERGY FINANCE CORPORATION
7.125% Senior Note due 2021
Copano Energy, L.L.C., a Delaware limited liability company, and Copano Energy Finance
Corporation, a Delaware corporation, jointly and severally promise to pay to __________, or
registered assigns, the principal sum of _________ Dollars on April 1, 2021 [or such greater or
lesser amount as may be indicated on Schedule A hereto].1
Interest Payment Dates: April 1 and October 1.
Record Dates: March 15 and September 15.
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1 |
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If this Note is a Global Note, add this provision. |
Exhibit A-1
Additional provisions of this Note are set forth on the other side of this Note.
Copano Energy, L.L.C.
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By: |
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Name:
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Title: |
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Copano Energy Finance Corporation
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By: |
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Name: |
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Title: |
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TRUSTEES CERTIFICATE OF
AUTHENTICATION
U.S. Bank National Association,
as Trustee, certifies that
this is one of the Notes
referred to in the Indenture.
Dated:
Exhibit A-2
[FORM OF REVERSE SIDE OF NOTE]
7.125% Senior Note due 2021
Capitalized terms used herein but not defined shall have the meanings assigned to them in the
Indenture referred to below unless otherwise indicated.
1. Interest. Copano Energy, L.L.C., a Delaware limited liability company (the
Company), and Copano Energy Finance Corporation, a Delaware corporation (the Finance Corp. and,
together with the Company, the Issuers), jointly and severally promise to pay interest on the
principal amount of this Note at 7.125% per annum from April 5, 2011 until maturity. The Issuers
will pay interest semi-annually in arrears on April 1 and October 1 of each year, commencing
October 1, 2011, 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 will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of original issuance;
provided that if there is no existing Default or Event of Default in the payment of interest, and
if this Note is authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next succeeding Interest Payment
Date, except in the case of the original issuance of Notes, in which case interest shall accrue
from the date of authentication. 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 the rate then in effect; it 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 will be computed on the basis of a 360-day year of twelve
30-day months.
2. Method of Payment. The Issuers will pay interest on the Notes (except defaulted
interest) to the Persons who are registered Holders of Notes at the close of business on the March
15 or September 15 next preceding the Interest Payment Date, even if such Notes are cancelled after
such record date and on or before such Interest Payment Date, except as provided in Section 3.12 of
the Indenture with respect to defaulted interest. Holders must surrender Notes to the Paying Agent
to collect payments of principal and premium, if any, together with accrued and unpaid interest,
due at maturity. The Notes will be payable as to principal, premium, if any, and interest at the
office or agency of the Issuers maintained for such purpose within 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 will be required with respect to any amounts due on all Global Notes
and all other Notes the Holders of which shall have provided wire transfer instructions to the
Issuers or the Paying Agent. Such payment shall be in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, U.S. Bank National Association, the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may change any Paying
Agent or Registrar without notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
Exhibit A-3
4. Indenture. The Issuers issued the Notes under a Senior Indenture dated as of April
5, 2011 (the Base Indenture) among the Issuers, the Guarantors and the Trustee, as amended and
supplemented by the First Supplemental Indenture of even date therewith (the Base Indenture, as so
amended and supplemented, being called the Indenture). 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. The Notes
are unsecured senior obligations of the Issuers limited to $360,000,000 aggregate principal amount
in the case of Notes issued on the Issue Date (as defined in the Indenture).
5. Optional Redemption.
(a) Except as set forth in subparagraphs (b), (c) and (d) of this Paragraph 5, the Issuers
shall not have the option to redeem the Notes prior to April 1, 2016. On or after April 1, 2016,
the Issuers shall have the option to redeem the Notes, in whole or in part at any time, upon prior
notice as set forth in Paragraph 8, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest, if any, to the applicable redemption
date (subject to the right of Holders of record on the relevant record date to receive interest due
on an Interest Payment Date that is on or prior to the redemption date), if redeemed during the
twelve-month period beginning on April 1 of the years indicated below:
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YEAR |
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2016 |
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103.563 |
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102.375 |
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2018 |
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101.188 |
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2019 and thereafter |
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100.000 |
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(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to April 1, 2014, the Issuers may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes (including any Additional Notes) issued under the Indenture at a
redemption price of 107.125% of the principal amount thereof, plus accrued and unpaid interest, if
any, thereon to the redemption date (subject to the right of Holders of record on the relevant
record date to receive interest due on an Interest Payment Date that is on or prior to the
redemption date), with the net cash proceeds of one or more Equity Offerings by the Company;
provided that (i) at least 65% of the aggregate principal amount of Notes (including any Additional
Notes) issued under the Indenture remains outstanding immediately after the occurrence of each such
redemption (excluding any Notes held by the Company and its Subsidiaries) and (ii) each such
redemption occurs within 120 days of the date of the closing of each such Equity Offering.
(c) Prior to April 1, 2016, the Issuers may redeem all or part of the notes upon not less than
30 nor more than 60 days notice, at a redemption price equal to the sum of (1) the principal
amount thereof, plus (2) accrued and unpaid interest, if any, to the redemption date (subject to
the right of Holders of record on the relevant record date to receive interest due on an Interest
Payment Date that is on or prior to the redemption date), plus (3) the Make Whole Premium at the
redemption date.
Exhibit A-4
(d) Following a Change of Control Offer, the Notes are also subject to redemption, at the
Companys option, subject to the conditions and as provided in Section 5.15(7) of the Indenture.
6. Mandatory Redemption.
Except as set forth in Paragraph 7 below, neither of the Issuers shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes or to repurchase the Notes
at the option of the Holders.
7. Repurchase at Option of Holder.
(a) Within 30 days following the occurrence of a Change of Control, the Company shall make an
offer (a Change of Control Offer) to repurchase all or any part (equal to $2,000 or an integral
multiple of $1,000 in excess thereof) of each Holders Notes at a purchase price equal to 101% of
the aggregate principal amount of Notes repurchased, plus accrued and unpaid interest, if any, to
the date of settlement (the Change of Control Settlement Date), subject to the right of Holders
of record on the relevant record date to receive interest due on an Interest Payment Date that is
on or prior to the Change of Control Settlement Date. Within 30 days following a Change of
Control, the Company shall mail a notice of the Change of Control Offer to each Holder and the
Trustee describing the transaction that constitutes the Change of Control and setting forth the
procedures governing the Change of Control Offer as required by Section 5.15 of the Indenture.
(b) On the 361st day after an Asset Sale, if the aggregate amount of Excess Proceeds then
exceeds $20.0 million, the Company shall commence an offer to all Holders of Notes (an Asset Sale
Offer) pursuant to Section 4.09 of the Indenture, and to all holders of any Pari Passu
Indebtedness then outstanding, to purchase on a pro rata basis the maximum principal amount of
Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to 100% of the principal amount of the Notes plus accrued
and unpaid interest, if any, thereon to the date of settlement, subject to the right of Holders of
record on the relevant record date to receive interest due on an Interest Payment Date that is on
or prior to the Change of Control Settlement Date, in accordance with the procedures set forth in
the Indenture. If any Excess Proceeds remain after consummation of an Asset Sale Offer, the
Company or any Restricted Subsidiary may use such remaining Excess Proceeds for any purpose not
otherwise prohibited by the Indenture. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds allocated to the Notes, the Trustee shall
select the Notes to be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Trustee so that only Notes in denominations of $2,000, or integral multiples of
$1,000 in excess thereof, shall be purchased) on the basis of the aggregate principal amount of
tendered Notes (or in the case of Notes represented by a Global Note, the Trustee will select Notes
for purchase by such method as DTC may require). Holders of Notes that are the subject of an offer
to purchase will receive an Asset Sale Offer from the Company prior to any related purchase date
and may elect to have such Notes purchased by completing the form entitled Option of Holder to
Elect Purchase on the reverse of the Notes.
Exhibit A-5
8. Notice of Redemption. Notice of redemption will be mailed at least 30 days but not
more than 60 days (except as otherwise provided in the Indenture if the notice is issued in
connection with a Legal Defeasance, Covenant Defeasance or Discharge) before the redemption date to
each Holder whose Notes are to be redeemed at its registered address. If mailed in the manner
provided for in Section 4.03 of the Indenture, the notice of optional redemption shall be
conclusively presumed to have been given whether or not a Holder receives such notice. Failure to
give timely notice or any defect in the notice shall not affect the validity of the redemption.
Notes in denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption
date interest ceases to accrue on Notes or portions thereof called for redemption.
9. Guarantees. The payment by the Issuers of the principal of, premium, if any, and
interest on the Notes is fully and unconditionally guaranteed on a joint and several senior
unsecured basis by each of the Guarantors to the extent set forth in the Indenture.
10. Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in denominations of $2,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements and transfer
documents, and the Company may require a Holder to pay any taxes due on transfer or exchange. The
Issuers need not exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in part. Also, they need
not exchange or register the transfer of any Notes for a period of 15 days before a selection of
Notes to be redeemed.
11. Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.
12. 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 at least a majority in
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 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 (1) to cure any ambiguity, defect or
inconsistency, (2) to provide for uncertificated Notes in addition to or in place of certificated
Notes, (3) to provide for the assumption of an Issuers obligations to Holders of the Notes
pursuant to Article 6 of the Indenture, (4) 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 such Holder, provided that any change to conform the Indenture to the
Prospectus shall not be deemed to adversely affect the legal rights under the Indenture of any
Holder, (5) to secure the Notes or the Subsidiary Guarantees pursuant to Section 5.12 of the
Indenture or otherwise, (6) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture, (7) to add any additional Guarantor with respect to the
Notes or to evidence the release of any Guarantor from its Subsidiary Guarantee, in each case as
provided in the Indenture, (8) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture
Exhibit A-6
Act or (9) to evidence or provide for the acceptance of appointment under the Indenture of a
successor Trustee.
13. Defaults and Remedies. Events of Default include: (i) default for 30 days in the
payment when due of interest on the Notes; (ii) default in payment when due of the principal of or
premium, if any, on the Notes when due at Stated Maturity, upon optional redemption, upon required
repurchase, upon declaration or otherwise; (iii) failure by the Company to comply with Section
4.09, 5.10, 5.15 or 6.01 of the Indenture; (iv) failure by the Company for 90 days after notice to
comply with Section 5.03 of the Indenture; (v) failure by the Company for 60 days after notice to
comply with any of its other agreements in the Indenture or the Notes; (vi) default under any
mortgage, indenture or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted
Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries), whether such Indebtedness or guarantee now exists or is created after the Issue
Date, if such default (a) is caused by a failure to pay principal of, or premium or interest, if
any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness
(a Payment Default) or (b) results in the acceleration of such Indebtedness prior to its Stated
Maturity and, in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a Payment Default or the
maturity of which has been so accelerated, aggregates in excess of $20.0 million provided that if
any such Payment Default is cured or waived or any such acceleration rescinded, or such
Indebtedness is repaid, within a period of 60 days from the continuation of such Payment 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; (vii) failure by the
Company or any of its Subsidiaries to pay final judgments aggregating in excess of $20.0 million
(to the extent not covered by insurance by a reputable and creditworthy insurer as to which the
insurer has not disclaimed coverage), which judgments are not paid, discharged or stayed for a
period of 60 days; (viii) except as permitted by the Indenture, any Subsidiary Guarantee is held in
any judicial proceeding to be unenforceable or invalid or ceases for any reason to be in full force
and effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies or disaffirms
its obligations under its Subsidiary Guarantee; and (ix) certain events of bankruptcy, insolvency
or reorganization with respect to the Company, Finance Corp., any of the Companys Restricted
Subsidiaries that is a Significant Subsidiary of the Company or any group of Restricted
Subsidiaries of the Company that, taken together, would constitute a Significant Subsidiary of the
Company as specified in Section 7.01(i) or 7.01(j) of the Indenture. If any Event of Default
occurs and is continuing, the Trustee, by notice to the Issuers, or the Holders of at least 25% in
principal amount of the then outstanding Notes, by written notice to the Issuers and the Trustee,
may declare all the Notes to be due and payable immediately. Notwithstanding the preceding, in the
case of an Event of Default arising from such events of bankruptcy, insolvency or reorganization
described in Section 7.01(i) or 7.01(j) of the Indenture, all outstanding Notes will become
immediately 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 principal amount of the then outstanding Notes may direct the Trustee in
its exercise of any trust or power conferred on it. 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, interest or
Exhibit A-7
premium) if it determines that withholding notice is in their interest. The Holders of a
majority in 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
the principal of, premium, if any, or interest on the Notes. The Issuers are required to deliver
to the Trustee annually an Officers Certificate regarding compliance with the Indenture, and, so
long as any Notes are outstanding, 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.
14. Defeasance and Discharge. The Notes are subject to defeasance and discharge upon
the terms and conditions specified in the Indenture.
15. No Recourse Against Others. No past, present or future director, officer,
partner, employee, incorporator, manager or unitholder or other owner of Capital Stock of the
Issuers or any Guarantor, as such, shall have any liability for any obligations of the Issuers or
any Guarantor under the Notes, the Subsidiary Guarantees or the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of the consideration
for the issuance of the Notes.
16. Authentication. This Note shall not be valid until authenticated by the manual
signature of an authorized signatory of the Trustee or an authenticating agent.
17. 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).
18. CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuers have caused CUSIP numbers and corresponding
ISIN numbers to be printed on the Notes and the Trustee may use CUSIP 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.
19. Governing Law. THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20. Successors. In the event a successor assumes all the obligations of an Issuer
under the Notes and the Indenture, pursuant to the terms thereof, such Issuer will be released from
all such obligations.
Exhibit A-8
The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:
Copano Energy, L.L.C.
2727 Allen Parkway, Suite 1200
Houston, Texas 77019
Attention: Chief Financial Officer
Exhibit A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint __________________ agent to transfer this Note on the books of the Issuers.
The agent may substitute another to act for him.
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Date: |
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Your Signature: |
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Sign exactly as your name appears on the other side of this Note. |
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Signature Guarantee:
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(Signature must be guaranteed)
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Signatures must be guaranteed by an eligible guarantor institution meeting the requirements of
the Registrar, which requirements include membership or participation in the Security Transfer
Agent Medallion Program (STAMP) or such other signature guarantee program as may be determined
by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Exhibit A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 5.10 or
5.15 of the Indenture, check the box below:
o Section 5.10 o Section 5.15
If you want to elect to have only part of this Note purchased by the Company pursuant to
Section 5.10 or Section 5.15 of the Indenture, state the amount (in minimum denomination of $2,000
or integral multiples of $1,000 in excess thereof) you elect to have purchased: $____________
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Date: |
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Your Signature: |
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(Sign exactly as your name appears on the other side of this Note)
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Soc. Sec. or Tax Identification No.:
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Signature Guarantee: |
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(signature must be guaranteed)
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Signatures must be guaranteed by an eligible guarantor institution meeting the
requirements of the Registrar, which requirements include membership or participation in the
Security Transfer Agent Medallion Program (STAMP) or such other signature guarantee program as
may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities Exchange Act of 1934, as amended.
Exhibit A-11
[TO BE ATTACHED TO GLOBAL NOTE]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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Principal |
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Amount of |
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Amount of |
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Amount of this |
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decrease in |
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increase in |
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Global Note |
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authorized |
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Principal |
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Principal |
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following such |
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officer |
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Amount of this |
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Amount of this |
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decrease or |
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of Trustee or |
Date |
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Global Note |
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increase |
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Exhibit A-12
Exhibit B
FORM OF NOTATION OF SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture (the Indenture) referred to in the
Note upon which this notation is endorsed, each of the entities listed on Schedule A thereto
(hereinafter referred to as the Guarantors, which term includes any successor or additional
Guarantor under the Indenture) has unconditionally guaranteed: (a) the due and punctual payment of
the principal of, premium, if any, and interest on the Notes, whether at maturity or interest
payment date, by acceleration, call for redemption or otherwise, (b) the due and punctual payment
of interest on the overdue principal of, premium, if any, and interest if lawful, on the Notes, (c)
the due and punctual payment or performance of all other payment Obligations of the Issuers to the
Holders or the Trustee, all in accordance with the terms set forth in the Indenture, and (d) in
case of any extension of time of payment or renewal of any Notes or any of such other Obligations,
the prompt payment in full thereof when due or performance thereof in accordance with the terms of
the extension or renewal, whether at Stated Maturity, by acceleration or otherwise.
The Subsidiary Guarantees are subject to the limitations set forth in the Indenture, including
Article 11 thereof.
The Guarantors may be released from their Subsidiary Guarantees upon the terms and subject to
the conditions provided in the Indenture.
Exhibit B-1
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Guarantors |
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ACP TEXAS, L.L.C. |
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ALAMO CREEK PROPERTIES, L.L.C. |
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CANTERA GAS COMPANY LLC |
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CMW ENERGY SERVICES, L.L.C. |
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COPANO EAGLE FORD LLC |
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COPANO ENERGY SERVICES (TEXAS) GP, L.L.C. |
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COPANO ENERGY SERVICES GP, L.L.C. |
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COPANO ENERGY/MID-CONTINENT, L.L.C. |
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COPANO ENERGY/ROCKY MOUNTAINS, L.L.C. |
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COPANO FIELD FACILITIES/ROCKY MOUNTAINS, LLC |
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COPANO FIELD SERVICES GP, L.L.C. |
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COPANO FIELD SERVICES/CENTRAL GULF COAST GP, L.L.C. |
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COPANO FIELD SERVICES/NORTH TEXAS, L.L.C. |
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COPANO FIELD SERVICES/ROCKY MOUNTAINS, LLC |
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COPANO LIBERTY, LLC |
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COPANO NATURAL GAS/ROCKY MOUNTAINS, LLC |
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COPANO NGL SERVICES (MARKHAM), L.L.C. |
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COPANO NGL SERVICES GP, L.L.C. |
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COPANO PIPELINES (TEXAS) GP, L.L.C. |
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COPANO PIPELINES GP, L.L.C. |
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COPANO PIPELINES/NORTH TEXAS, L.L.C. |
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COPANO PIPELINES/ROCKY MOUNTAINS, LLC |
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COPANO PIPELINES/VICTORIA, L.L.C. |
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COPANO PROCESSING GP, L.L.C. |
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COPANO PROCESSING/LOUISIANA, LLC |
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COPANO/RED RIVER GATHERING GP, L.L.C. |
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COPANO/WEBB-DUVAL PIPELINE GP, L.L.C. |
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CPNO SERVICES GP, L.L.C. |
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ESTES COVE FACILITIES, L.L.C. |
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GREENWOOD GATHERING, L.L.C. |
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NUECES GATHERING, L.L.C. |
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RIVER VIEW PIPELINES, L.L.C. |
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SCISSORTAIL ENERGY, LLC |
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By: |
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Carl A. Luna
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Senior Vice President and Chief Financial Officer |
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Exhibit B-2
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Copano Processing, L.P. |
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By
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Copano Processing GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano NGL Services, L.P. |
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By
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Copano NGL Services GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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CHC LP Holdings, L.L.C. |
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Copano Houston Central, L.L.C. |
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Copano Pipelines Group, L.L.C. |
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Copano/Red River Gathering LP Holdings, L.L.C. |
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CPG LP Holdings, L.L.C. |
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CPNO Services LP Holdings, L.L.C. |
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CWDPL LP Holdings, L.L.C. |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano General Partners, Inc. |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Exhibit B-3
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Copano Field Services/Agua Dulce, L.P. |
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Copano Field Services/Copano Bay, L.P. |
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Copano Field Services/Karnes, L.P. |
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Copano Field Services/Live Oak, L.P. |
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Copano Field Services/South Texas, L.P. |
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Copano Field Services/Upper Gulf Coast, L.P. |
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By
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Copano Field Services GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Pipelines/Hebbronville, L.P. |
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Copano Pipelines/South Texas, L.P. |
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Copano Pipelines/Upper Gulf Coast, L.P. |
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By
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Copano Pipelines GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Pipelines/Texas Gulf Coast, L.P.
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By
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Copano Pipelines (Texas) GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Exhibit B-4
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Copano Field Services/Central Gulf Coast, L.P.
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By
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Copano Field Services/Central Gulf
Coast GP, L.L.C., General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Energy Services/Upper Gulf Coast, L.P.
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By
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Copano Energy Services GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano Energy Services/Texas Gulf Coast, L.P.
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By
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Copano Energy Services (Texas) GP,
L.L.C., General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Copano/Webb-Duval Pipeline, L.P.
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By
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Copano/Webb Duval Pipeline GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Exhibit B-5
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CPNO Services, L.P.
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Copano Risk Management, L.P.
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By
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CPNO Services GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Cimmarron Gathering, LP
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By
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Copano/Red River Gathering GP, L.L.C.,
General Partner |
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By: |
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Name: Carl A. Luna |
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Title: Senior Vice President and Chief Financial Officer |
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Exhibit B-6
Exhibit C
COPANO ENERGY, L.L.C.
COPANO ENERGY FINANCE CORPORATION
and
the Guarantors named herein
7.125% SENIOR NOTES DUE 2021
FORM OF SUPPLEMENTAL INDENTURE
DATED AS OF ____________ __, ____
U.S. BANK NATIONAL ASSOCIATION,
Trustee
Exhibit C-1
This SUPPLEMENTAL INDENTURE, dated as of ___________ __, ____ is among Copano Energy, L.L.C.,
a Delaware limited liability company (the Company), Copano Energy Finance Corporation, a Delaware
corporation (Finance Corp. and, together with the Company, the Issuers), each of the parties
identified under the caption Guarantors on the signature pages hereof (the Guarantors) and U.S.
Bank National Association, a national banking association, as Trustee (the Trustee).
RECITALS
WHEREAS, the Issuers, the initial Guarantors and the Trustee entered into a Senior Indenture,
dated as of April 5, 2011 (the Base Indenture), as amended and supplemented by the First
Supplemental Indenture of even date therewith (the Base Indenture, as so amended and supplemented,
being called the Indenture), pursuant to which the Company has issued $__________ in principal
amount of 7.125% Senior Notes due 2021 (the Notes);
WHEREAS, Section 10.01(g) of the Indenture provides that the Issuers, the Guarantors and the
Trustee may amend or supplement the Indenture in order to comply with Section 5.13 or 11.03
thereof, without the consent of the Holders of the Notes; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by the Certificate of
Incorporation and the Bylaws (or comparable constituent documents) of the Issuers, of the
Guarantors and of the Trustee necessary to make this Supplemental Indenture a valid instrument
legally binding on the Issuers, the Guarantors and the Trustee, in accordance with its terms, have
been duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture and in consideration of the
above premises, the Issuers, the Guarantors and the Trustee covenant and agree for the equal and
proportionate benefit of the respective Holders of the Notes as follows:
ARTICLE 1
Section 1.01. This Supplemental Indenture is supplemental to the Indenture and does and shall
be deemed to form a part of, and shall be construed in connection with and as part of, the
Indenture for any and all purposes.
Section 1.02. This Supplemental Indenture shall become effective immediately upon its
execution and delivery by each of the Issuers, the Guarantors and the Trustee.
ARTICLE 2
From this date, in accordance with Section 5.13 or 11.03 and by executing this Supplemental
Indenture, the Guarantors whose signatures appear below are subject to the provisions of the
Indenture to the extent provided for in Article 11 thereunder.
ARTICLE 3
Section 3.01. Except as specifically modified herein, the Indenture and the Notes are in all
respects ratified and confirmed (mutatis mutandis) and shall remain in full force and effect in
Exhibit C-2
accordance with their terms with all capitalized terms used herein without definition having
the same respective meanings ascribed to them as in the Indenture.
Section 3.02. Except as otherwise expressly provided herein, no duties, responsibilities or
liabilities are assumed, or shall be construed to be assumed, by the Trustee by reason of this
Supplemental Indenture. This Supplemental Indenture is executed and accepted by the Trustee
subject to all the terms and conditions set forth in the Indenture with the same force and effect
as if those terms and conditions were repeated at length herein and made applicable to the Trustee
with respect hereto.
Section 3.03. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.04. The parties may sign any number of copies of this Supplemental Indenture. Each
signed copy shall be an original, but all of such executed copies together shall represent the same
agreement.
[NEXT PAGE IS SIGNATURE PAGE]
Exhibit C-3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first written above.
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Copano Energy, L.L.C. |
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By |
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Name: |
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Title: |
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Copano Energy Finance Corporation |
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By: |
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Name: |
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Title: |
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GUARANTORS |
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[
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By |
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Name: |
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Title: |
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U.S. Bank National Association,
as Trustee |
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By |
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Name: |
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Title: |
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Exhibit C-4