FIRST SUPPLEMENTAL INDENTURE
Exhibit 4.3
First Supplemental Indenture (this “First Supplemental Indenture”), dated as of April
14, 2010, among Xxxxx Energy Storage-Tulsa LLC, a Delaware limited liability company (“HES Tulsa”)
and Xxxxx Energy Storage-Lovington LLC (“HES Lovington” and collectively with HES Tulsa, the
“Guaranteeing Subsidiaries”), Xxxxx Energy Partners, L.P., a Delaware limited partnership (“Xxxxx
Energy Partners”), and Xxxxx Energy Finance Corp. (“Finance Corp.” and, together with Xxxxx Energy
Partners, the “Issuers”), the other Guarantors (as defined in the Indenture referred to herein) 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 March 10, 2010 providing for the issuance of 8.25% Senior Notes due 2018
(the “Notes”);
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 First 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.
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.
4. 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 Guarantee, the Indenture or this First 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.
5. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE.
6. Counterparts. The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but all of them together represent
the same agreement.
7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.
8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or
in respect of the validity or sufficiency of this First 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.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.
| GUARANTEEING SUBSIDIARIES: XXXXX ENERGY STORAGE-TULSA LLC, a Delaware limited liability company |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
| XXXXX ENERGY STORAGE-LOVINGTON LLC, a Delaware limited
liability company |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Senior Vice President and Chief Financial Officer | |||
Signature Page to First Supplemental Indenture
S-1
| ISSUERS: | ||||||||||
| XXXXX ENERGY PARTNERS, L.P. | ||||||||||
| By: | HEP Logistic Holdings, L.P., Its General Partner |
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| By: | Xxxxx Logistic Services, L.L.C., Its General Partner |
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| By: | /s/ Xxxxx X. Xxxx | |||||||||
| Name: Xxxxx X. Xxxx | ||||||||||
| Title: Senior Vice President and Chief Financial Officer |
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| XXXXX ENERGY FINANCE CORP. | ||||||||||
| By: | /s/ Xxxxx X. Xxxx | |||||||||
| Name: Xxxxx X. Xxxx | ||||||||||
| Title: Vice President and Chief Financial Officer | ||||||||||
Signature Page to First Supplemental Indenture
S-2
| OTHER GUARANTORS: HEP LOGISTICS GP, L.L.C., a Delaware limited liability company |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
| XXXXX ENERGY PARTNERS-OPERATING, L.P., a Delaware limited
partnership |
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| By: | /s/ Xxxxx X. Xxxx | |||
| Name: | Xxxxx X. Xxxx | |||
| Title: | Vice President and Chief Financial Officer | |||
Signature Page to First Supplemental Indenture
S-3
| HEP PIPELINE GP, L.L.C., a Delaware limited liability company | ||||||||
| HEP PIPELINE, L.L.C., a Delaware limited liability company | ||||||||
| HEP MOUNTAIN HOME, L.L.C., a Delaware limited liability company | ||||||||
| HEP REFINING, L.L.C., a Delaware limited liability company | ||||||||
| HEP REFINING GP, L.L.C., a Delaware limited liability company | ||||||||
| HEP XXXXX CROSS, L.L.C., a Delaware limited liability company | ||||||||
| HEP TULSA LLC, a Delaware limited liability company | ||||||||
| HEP SLC, LLC, a Delaware limited liability company | ||||||||
| LOVINGTON-ARTESIA, L.L.C., 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 liability company and Its Sole Member |
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| By: | /s/ Xxxxx X. Xxxx
|
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| Title: Vice President and Chief Financial Officer | ||||||||
Signature Page to First Supplemental Indenture
S-4
| 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: | /s/ Xxxxx X. Xxxx | |||||||||
| Name: Xxxxx X. Xxxx | ||||||||||
| Title: Vice President and Chief Financial Officer | ||||||||||
| 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: | /s/ Xxxxx X. Xxxx
|
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| Title: Vice President and Chief Financial Officer | ||||||||||
Signature Page to First Supplemental Indenture
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| U.S. BANK NATIONAL ASSOCIATION, as Trustee |
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| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
Signature Page to First Supplemental Indenture
S-6
