NINTH SUPPLEMENTAL INDENTURE
Exhibit 4.12
NINTH SUPPLEMENTAL INDENTURE
NINTH SUPPLEMENTAL INDENTURE (this “Ninth Supplemental Indenture”), dated as of December 29, 2011, among Cheyenne Logistics LLC, a Delaware limited liability company (“Cheyenne Logistics”) and El Dorado Logistics LLC, a Delaware limited liability company (“El Dorado Logistics” and collectively with Cheyenne Logistics, the “Guaranteeing Subsidiaries”), Xxxxx Energy Partners, L.P., a Delaware limited partnership (“Xxxxx Energy Partners”), and Xxxxx Energy Finance Corp. (“Finance Corp.” and collectively with Xxxxx Energy Partners, the “Issuers”), the other Guarantors (as defined in the Indenture referred to below) and U.S. Bank National Association, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the “Indenture”), dated as of February 28, 2005, providing for the issuance of 6 1/4% Senior Notes due 2015 (the “Notes”), a First Supplemental Indenture, dated as of March 10, 2005, providing for the addition of HEP Fin-Tex/Trust River, L.P., a Texas limited partnership, as a Guarantor under the Indenture, a Second Supplemental Indenture, dated as of April 27, 2005, providing for the correction of the redemption prices tables in the Indenture and the form of Note, a Third Supplemental Indenture, dated as of June 11, 2009, providing for the addition of Lovington-Artesia, L.L.C., a Delaware limited liability company, as a Guarantor under the Indenture, a Fourth Supplemental Indenture, dated as of June 29, 2009, providing for the addition of HEP SLC, L.L.C., a Delaware limited liability company, as a Guarantor under the Indenture, a Fifth Supplemental Indenture, dated as of July 13, 2009, providing for the addition of HEP Tulsa LLC, a Delaware limited liability company, as a Guarantor under the Indenture, a Sixth Supplemental Indenture, dated as of December 15, 2009, providing for the addition of Roadrunner Pipeline L.L.C., a Delaware limited liability company, as a Guarantor under the Indenture, a Seventh Supplemental Indenture, dated as of April 14, 2010, providing for the addition of Xxxxx Energy Storage-Tulsa LLC, a Delaware limited liability company and Xxxxx Energy Storage-Lovington LLC, a Delaware limited liability company, as Guarantors under the Indenture, and an Eighth Supplemental Indenture, dated as of June 4, 2010, providing for the addition of HEP Operations LLC, a Delaware limited liability company, as a Guarantor under the Indenture;
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally guarantee all of the Issuers’ Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Ninth Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
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2. AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiaries hereby agree to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of the Guaranteeing Subsidiaries, as such, shall have any liability for any obligations of the Issuers or any Guaranteeing Subsidiaries under the Notes, any Note Guarantees, the Indenture or this Ninth Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the 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. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
4. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS NINTH SUPPLEMENTAL INDENTURE.
5. COUNTERPARTS. The parties may sign any number of copies of this Ninth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Ninth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiaries and the Issuers.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Sixth Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| GUARANTEEING SUBSIDIARIES: | ||
| CHEYENNE LOGISTICS LLC, a Delaware limited liability company | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx | ||
| President and Chief Executive Officer | ||
| EL DORADO LOGISTICS LLC, a Delaware limited liability company | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Xxxxxxx X. Xxxxxxx | ||
| President and Chief Executive Officer | ||
| ISSUERS: | ||||||
| XXXXX ENERGY PARTNERS, L.P. | ||||||
| By: | HEP Logistic Holdings, L.P., | |||||
| its general partner | ||||||
| By: | Xxxxx Logistic Services, L.L.C., | |||||
| its general partner | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, | ||||||
| Strategy and Corporate Development | ||||||
| XXXXX ENERGY FINANCE CORP. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Xxxxxxx X. Xxxxxxx | ||||||
| President and Chief Executive Officer | ||||||
| OTHER GUARANTORS: | ||
| HEP OPERATIONS LLC, a Delaware limited liability company | ||
| By: | /s/ Xxxxx X. Xxxx | |
| Xxxxx X. Xxxx | ||
| Senior Vice President, | ||
| Strategy and Corporate Development | ||
| HEP LOGISTICS GP, L.L.C., a Delaware limited liability company | ||||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner | |||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, Strategy and Corporate Development | ||||||
| XXXXX ENERGY PARTNERS-OPERATING, L.P., a Delaware limited partnership | ||||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner | |||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, | ||||||
| Strategy and Corporate Development | ||||||
| XXXXX ENERGY STORAGE-TULSA LLC, a Delaware limited partnership | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, | ||||||
| Strategy and Corporate Development | ||||||
| XXXXX ENERGY STORAGE-LOVINGTON LLC, a Delaware limited partnership | ||||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, | ||||||
| Strategy and Corporate Development | ||||||
| HEP PIPELINE GP, L.L.C., a Delaware limited liability company | ||||||
| HEP REFINING GP, L.L.C., a Delaware limited liability company | ||||||
| HEP MOUNTAIN HOME, L.L.C., a Delaware limited liability company | ||||||
| HEP PIPELINE, L.L.C., a Delaware limited liability company | ||||||
| HEP REFINING, L.L.C., a Delaware limited liability company | ||||||
| HEP XXXXX CROSS, L.L.C., a Delaware limited liability company | ||||||
| LOVINGTON-ARTESIA, L.L.C., a Delaware limited liability company | ||||||
| HEP SLC, LLC, a Delaware limited liability company | ||||||
| HEP TULSA LLC, a Delaware limited liability company | ||||||
| ROADRUNNER PIPELINE L.L.C., a Delaware limited liability company | ||||||
| Each by: | Xxxxx Energy Partners—Operating, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner | |||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, Strategy and Corporate Development | ||||||
| HEP FIN-TEX/TRUST RIVER, L.P., a Texas limited partnership | ||||||
| HEP NAVAJO SOUTHERN, L.P., a Delaware limited partnership | ||||||
| HEP PIPELINE ASSETS, LIMITED PARTNERSHIP, a Delaware limited partnership | ||||||
| Each by: | HEP Pipeline GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners—Operating, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner | |||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, Strategy and Corporate Development | ||||||
| HEP REFINING ASSETS, L.P., a Delaware limited partnership | ||||||
| By: | HEP Refining GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners—Operating, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics GP, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | Xxxxx Energy Partners, L.P., a Delaware limited partnership, its Sole Member | |||||
| By: | HEP Logistics Holdings, L.P., a Delaware limited partnership, its General Partner | |||||
| By: | Xxxxx Logistic Services, L.L.C., a Delaware limited liability company, its General Partner | |||||
| By: | /s/ Xxxxx X. Xxxx | |||||
| Xxxxx X. Xxxx | ||||||
| Senior Vice President, | ||||||
| Strategy and Corporate Development | ||||||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Xxxxxx X. Xxxxxxx | |
| Xxxxxx X. Xxxxxxx | ||
| Vice President | ||
