Exhibit
4.1




 





 


GIBSON ENERGY ULC,


 


GEP MIDSTREAM FINANCE CORP.


 


AND EACH OF THE PARTIES THAT BECOME GUARANTORS HERETO


 


 


11.75% FIRST LIEN SENIOR SECURED NOTES DUE 2014


 


 






 


INDENTURE


 


Dated as of May 27, 2009


 






 


THE BANK OF NEW YORK MELLON,


 


Trustee








 


BNY TRUST COMPANY OF CANADA,


 


Collateral Agent




 





 

















 


CROSS-REFERENCE TABLE*


 


	
  Trust Indenture

  Act Section

  	
   

  	
  Indenture Section

  
	
  310(a)(1)

  	
   

  	
  7.10

  
	
  (a)(2)

  	
   

  	
  7.10

  
	
  (a)(3)

  	
   

  	
  N.A.

  
	
  (a)(4)

  	
   

  	
  N.A.

  
	
  (a)(5)

  	
   

  	
  7.10

  
	
  (b)

  	
   

  	
  7.10

  
	
  (c)

  	
   

  	
  N.A.

  
	
  311(a)

  	
   

  	
  7.11

  
	
  (b)

  	
   

  	
  7.11

  
	
  (c)

  	
   

  	
  N.A.

  
	
  312(a)

  	
   

  	
  2.05

  
	
  (b)

  	
   

  	
  12.03

  
	
  (c)

  	
   

  	
  12.03

  
	
  313(a)

  	
   

  	
  7.06

  
	
  (b)(1)

  	
   

  	
  8.04

  
	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;12.02; 12.05

  
	
  (b)

  	
   

  	
  8.05

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  8.05

  
	
  (e)

  	
   

  	
  12.05

  
	
  (f)

  	
   

  	
  N.A.

  
	
  315(a)

  	
   

  	
  7.01

  
	
  (b)

  	
   

  	
  7.05; 12.02

  
	
  (c)

  	
   

  	
  7.01

  
	
  (d)

  	
   

  	
  7.01

  
	
  (e)

  	
   

  	
  6.11

  
	
  316(a)(1)(A)

  	
   

  	
  6.05

  
	
  (a)(1)(B)

  	
   

  	
  6.04

  
	
  (a)(2)

  	
   

  	
  N.A.

  
	
  (b)

  	
   

  	
  6.07

  
	
  (c)

  	
   

  	
  N.A.

  
	
  317(a)(1)

  	
   

  	
  6.08

  
	
  (a)(2)

  	
   

  	
  6.09

  
	
  (b)

  	
   

  	
  2.04

  
	
  318(a)

  	
   

  	
  12.01

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)

  	
   

  	
  12.01

  



 






N.A.
means not applicable.


*          This Cross Reference Table is not part
of the Indenture.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE 1

  
	
  DEFINITIONS AND
  INCORPORATION

  
	
  BY REFERENCE

  
	
   

  
	
  Section 1.01.

  	
  Definitions

  	
  1

  
	
  Section 1.02.

  	
  Other
  Definitions

  	
  38

  
	
  Section 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  39

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE NOTES

  
	
   

  
	
  Section 2.01.

  	
  Form and
  Dating

  	
  40

  
	
  Section 2.02.

  	
  Execution
  and Authentication

  	
  41

  
	
  Section 2.03.

  	
  Registrar
  and Paying Agent

  	
  41

  
	
  Section 2.04.

  	
  Paying
  Agent to Hold Money in Trust

  	
  42

  
	
  Section 2.05.

  	
  Holder
  Lists

  	
  42

  
	
  Section 2.06.

  	
  Transfer
  and Exchange

  	
  42

  
	
  Section 2.07.

  	
  Replacement
  Notes

  	
  57

  
	
  Section 2.08.

  	
  Outstanding
  Notes

  	
  57

  
	
  Section 2.09.

  	
  Treasury
  Notes

  	
  57

  
	
  Section 2.10.

  	
  Temporary
  Notes

  	
  58

  
	
  Section 2.11.

  	
  Cancellation

  	
  58

  
	
  Section 2.12.

  	
  Defaulted
  Interest

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices
  to Trustee

  	
  59

  
	
  Section 3.02.

  	
  Selection
  of Notes to Be Redeemed or Purchased

  	
  59

  
	
  Section 3.03.

  	
  Notice
  of Redemption

  	
  60

  
	
  Section 3.04.

  	
  Effect
  of Notice of Redemption

  	
  60

  
	
  Section 3.05.

  	
  Deposit
  of Redemption or Purchase Price

  	
  61

  
	
  Section 3.06.

  	
  Notes
  Redeemed or Purchased in Part

  	
  61

  
	
  Section 3.07.

  	
  Optional
  Redemption

  	
  61

  
	
  Section 3.08.

  	
  Offer
  to Purchase by Application of Excess Proceeds or Excess Loss Proceeds

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment
  of Notes

  	
  64

  
	
  Section 4.02.

  	
  Maintenance
  of Office or Agency

  	
  65

  
	
  Section 4.03.

  	
  Reports

  	
  65

  



 


i

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.04.

  	
  Compliance
  Certificate

  	
  66

  
	
  Section 4.05.

  	
  Taxes

  	
  67

  
	
  Section 4.06.

  	
  Stay,
  Extension and Usury Laws

  	
  67

  
	
  Section 4.07.

  	
  Limitations
  on Restricted Payments

  	
  67

  
	
  Section 4.08.

  	
  Limitations
  on Dividend and Other Restrictions Affecting Restricted Subsidiaries

  	
  70

  
	
  Section 4.09.

  	
  Limitations
  on Additional Indebtedness

  	
  71

  
	
  Section 4.10.

  	
  Limitations
  on Asset Sales

  	
  74

  
	
  Section 4.11.

  	
  Limitations
  on Transactions with Affiliates

  	
  77

  
	
  Section 4.12.

  	
  Limitations
  on Liens

  	
  79

  
	
  Section 4.13.

  	
  Conduct
  of Business

  	
  79

  
	
  Section 4.14.

  	
  Corporate
  Existence

  	
  79

  
	
  Section 4.15.

  	
  Offer
  to Repurchase upon Change of Control

  	
  79

  
	
  Section 4.16.

  	
  Payments
  for Consent

  	
  81

  
	
  Section 4.17.

  	
  Additional
  Note Guarantees

  	
  81

  
	
  Section 4.18.

  	
  Limitation
  on Designation of Unrestricted Subsidiaries

  	
  82

  
	
  Section 4.19.

  	
  Events
  of Loss

  	
  83

  
	
  Section 4.20.

  	
  Limitation
  on Layering Indebtedness

  	
  84

  
	
  Section 4.21.

  	
  Limitations
  on Sale and Leaseback Transactions

  	
  84

  
	
  Section 4.22.

  	
  Limitations
  on Issuance or Sale of Equity Interests of Restricted Subsidiaries

  	
  85

  
	
  Section 4.23.

  	
  Further
  Assurances

  	
  85

  
	
  Section 4.24.

  	
  Limitations
  on Activities of Finance Corp.

  	
  86

  
	
  Section 4.25.

  	
  Additional
  Amounts

  	
  86

  
	
  Section 4.26.

  	
  Information
  Regarding Collateral

  	
  88

  
	
  Section 4.27.

  	
  Maintenance
  of Fixed Charges on Rolling Stock; Limitations on Operating Leases of Rolling
  Stock

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger,
  Consolidation, Etc.

  	
  89

  
	
  Section 5.02.

  	
  Successor
  Corporation Substituted

  	
  93

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events
  of Default

  	
  94

  
	
  Section 6.02.

  	
  Acceleration

  	
  96

  
	
  Section 6.03.

  	
  Other
  Remedies

  	
  97

  
	
  Section 6.04.

  	
  Waiver
  of Past Defaults

  	
  97

  
	
  Section 6.05.

  	
  Control
  by Majority

  	
  97

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
  97

  
	
  Section 6.07.

  	
  Rights
  of Holders of Notes to Receive Payment

  	
  98

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
  98

  



 


ii

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  98

  
	
  Section 6.10.

  	
  Priorities

  	
  99

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  of Trustee

  	
  100

  
	
  Section 7.02.

  	
  Rights
  of Trustee

  	
  101

  
	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
  102

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
  102

  
	
  Section 7.05.

  	
  Notice
  of Defaults

  	
  103

  
	
  Section 7.06.

  	
  Reports
  by Trustee to Holders of the Notes

  	
  103

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
  103

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
  106

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger, etc.

  	
  107

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
  107

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  107

  
	
  Section 7.12.

  	
  Payment
  of Additional Interest

  	
  107

  
	
  Section 7.13.

  	
  Appointment
  of Co-Trustees

  	
  107

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  COLLATERAL

  
	
   

  	
   

  	
   

  
	
  Section 8.01.

  	
  Collateral
  Documents

  	
  109

  
	
  Section 8.02.

  	
  Collateral
  Agent

  	
  109

  
	
  Section 8.03.

  	
  Authorization
  of Actions to Be Taken

  	
  111

  
	
  Section 8.04.

  	
  Release
  of Collateral

  	
  112

  
	
  Section 8.05.

  	
  Filing,
  Recording and Opinions

  	
  114

  
	
  Section 8.06.

  	
  Powers
  Exercisable by Receiver or Trustee

  	
  115

  
	
  Section 8.07.

  	
  Releases
  of Collateral

  	
  115

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of Holders of Notes

  	
  116

  
	
  Section 9.02.

  	
  With
  Consent of Holders of Notes

  	
  117

  
	
  Section 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  119

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents

  	
  119

  
	
  Section 9.05.

  	
  Notation
  on or Exchange of Notes

  	
  119

  
	
  Section 9.06.

  	
  Trustee
  to Sign Amendments, etc.

  	
  119

  



 


iii

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  GUARANTEES

  
	
   

  
	
  Section 10.01.

  	
  Guarantee

  	
  120

  
	
  Section 10.02.

  	
  Limitation
  on Guarantor Liability

  	
  121

  
	
  Section 10.03.

  	
  Execution
  and Delivery of Note Guarantee

  	
  121

  
	
  Section 10.04.

  	
  Guarantors
  May Consolidate, etc., on Certain Terms

  	
  122

  
	
  Section 10.05.

  	
  Releases

  	
  123

  
	
  Section 10.06.

  	
  Canadian
  Guarantees

  	
  123

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  
	
  Section 11.01.

  	
  Satisfaction
  and Discharge

  	
  123

  
	
  Section 11.02.

  	
  Application
  of Trust Money

  	
  124

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Trust
  Indenture Act Controls

  	
  125

  
	
  Section 12.02.

  	
  Notices

  	
  125

  
	
  Section 12.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  127

  
	
  Section 12.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  127

  
	
  Section 12.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  128

  
	
  Section 12.06.

  	
  Rules by
  Trustee and Agents

  	
  128

  
	
  Section 12.07.

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
  128

  
	
  Section 12.08.

  	
  Governing
  Law

  	
  129

  
	
  Section 12.09.

  	
  Consent
  to Jurisdiction and Service of Process; Waiver of Trial by Jury

  	
  129

  
	
  Section 12.10.

  	
  No
  Adverse Interpretation of Other Agreements

  	
  129

  
	
  Section 12.11.

  	
  Successors

  	
  129

  
	
  Section 12.12.

  	
  Severability

  	
  129

  
	
  Section 12.13.

  	
  Counterpart
  Originals

  	
  129

  
	
  Section 12.14.

  	
  Table
  of Contents, Headings, etc

  	
  130

  
	
  Section 12.15.

  	
  Interest
  Act

  	
  130

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Option
  To Effect Legal Defeasance or Covenant Defeasance

  	
  130

  
	
  Section 13.02.

  	
  Legal
  Defeasance and Discharge

  	
  130

  
	
  Section 13.03.

  	
  Covenant
  Defeasance

  	
  131

  
	
  Section 13.04.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  131

  
	
  Section 13.05.

  	
  Deposited Money and U.S. Government Obligations To
  Be Held in Trust; Other Miscellaneous Provisions

  	
  133

  
	
  Section 13.06.

  	
  Repayment
  to Issuers

  	
  133

  
	
  Section 13.07.

  	
  Reinstatement

  	
  133

  



 


iv

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  EXHIBITS

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  FORM OF
  NOTE

  	
   

  
	
  Exhibit B

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  	
   

  
	
  Exhibit C

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  	
   

  
	
  Exhibit D

  	
  FORM OF
  CERTIFICATE FROM ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  	
   

  
	
  Exhibit E

  	
  FORM OF
  NOTATION OF GUARANTEE

  	
   

  
	
  Exhibit F

  	
  FORM OF
  SUPPLEMENTAL INDENTURE

  	
   

  
	
  Exhibit G-1

  	
  FORM OF
  PARENT GUARANTEE

  	
   

  
	
  Exhibit G-2

  	
  FORM OF
  CANADIAN SUBSIDIARY GUARANTEE

  	
   

  
	
  Exhibit G-3

  	
  FORM OF ISSUERS’
  GUARANTEE

  	
   

  



 


v














 


INDENTURE dated as of May 27, 2009 among Gibson
Energy ULC, an Alberta unlimited liability corporation (the “Company”), GEP Midstream Finance Corp., an Alberta corporation
(“Finance Corp.” and, together with the
Company, the “Issuers”), each of the Guarantors,
The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”) and BNY Trust Company of Canada, a trust company
organized under the laws of Canada, as collateral agent (the “Collateral Agent”).


 


The Issuers, the Guarantors, the Trustee and the
Collateral Agent agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders (as defined) of the 11.75% First Lien
Senior Secured Notes due 2014 (the “Notes”):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01.          Definitions.


 


“144A Global Note”
means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee.


 


“Acquired Indebtedness”
means (1) with respect to any Person that becomes a Restricted Subsidiary
after the Issue Date, Indebtedness of such Person and its Subsidiaries existing
at the time such Person becomes a Restricted Subsidiary that was not incurred
in connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary and (2) with respect to the Company or any Restricted
Subsidiary, any Indebtedness of a Person (other than the Company or a Restricted
Subsidiary) existing at the time such Person is merged with or into the Company
or a Restricted Subsidiary, or Indebtedness (including Indebtedness secured by
a Lien encumbering any asset acquired by such Person) expressly assumed by the
Company or any Restricted Subsidiary in connection with the acquisition of an
asset or assets from another Person, which Indebtedness was not, in any case,
incurred by such other Person in connection with, or in contemplation of, such
merger or acquisition.


 


“Acquisition”
has the meaning assigned to such term under the caption “Offering Memorandum
Summary” in the Offering Memorandum.


 


“Additional Interest”
has the meaning given to such term or similar terms (including “Additional
Interest”) in the Registration Rights Agreement.


 


“Additional Notes”
means additional Notes (other than the Initial Notes) issued under this
Indenture in accordance with Section 2.02 hereof (provided that the
Indebtedness contemplated thereto may be incurred under Section 4.09
hereof) as part of the same series as the Initial Notes.


 


“Affiliate” of
any Person means any other Person which directly or indirectly controls or is
controlled by, or is under direct or indirect common control with, the referent
Person.  For purposes of Section 4.11,
Affiliates shall be deemed to include, with respect to any Person, any other Person
(1) which beneficially owns or holds, directly or indirectly, 10% or more
of any class of the Voting Stock of the referent Person, (2) of which 10%
or more of the Voting Stock is


 

















 


beneficially owned or held,
directly or indirectly, by the referenced Person or (3) with respect to an
individual, any immediate family member of such Person.  For purposes of this definition and the
definition of “Controlled Investment Affiliate,” “control”
of a Person shall mean the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.  No
Person (other than the Company or any Subsidiary of the Company) in whom a
Securitization Subsidiary makes an Investment in connection with a Qualified
Securitization Transaction will be deemed to be an Affiliate of the Company or
any of its Subsidiaries solely by reason of such Investment.


 


“After Acquired Collateral”
means Collateral other than (i) Collateral existing as of the Issue Date
and (ii) replacements of or improvements to Collateral existing as of the
Issue Date.


 


“Agent” means
any Registrar, co-registrar, Paying Agent or additional paying agent.


 


“Alberta Securities Laws”
means the Securities Act (Alberta) and the
published rules, regulations, rule and orders and forms prescribed
thereunder together with all applicable policy statements, multilateral or
national instruments and blanket orders and rulings issued or adopted by the
Alberta Securities Commission.


 


“amend” means to
amend, supplement, restate, amend and restate or otherwise modify, including
successively, and “amendment” shall have a correlative meaning.


 


“Applicable Procedures”
means, with respect to any transfer or exchange of or for beneficial interests
in any Global Note, the rules and procedures of the Depositary that apply
to such transfer or exchange.


 


“asset” means
any asset or property.


 


“Asset Acquisition”
means:


 


(1)           an
Investment by the Company or any Restricted Subsidiary of the Company in any
other Person if, as a result of such Investment, such Person shall become a
Restricted Subsidiary of an Issuer, or shall be merged with or into the Company
or any Restricted Subsidiary of the Company, or


 


(2)           the
acquisition by the Company or any Restricted Subsidiary of the Company of all
or substantially all of the assets of any other Person or any division or line
of business of any other Person.


 


“Asset Sale”
means any sale, issuance, conveyance, transfer, lease, assignment (other than a
collateral assignment) or other disposition by the Company or any Restricted Subsidiary
to any Person other than the Company or any Restricted Subsidiary (including by
means of a Sale and Leaseback Transaction or a merger or consolidation)
(collectively, for purposes of this definition, a “transfer”),
in one transaction or a series of related transactions, of any assets of the
Company or any of its Restricted Subsidiaries other than in the ordinary course
of business.  For purposes of this
Indenture, the term “Asset Sale” shall not include:


 


(1)           transfers of cash or
Cash Equivalents;


 


2





















 


(2)           transfers of assets
(including Equity Interests) that are governed by, and made in accordance with,
Section 5.01;


 


(3)           Permitted
Investments and Restricted Payments permitted under Section 4.07;


 


(4)           the creation of or
realization on any Lien permitted under this Indenture;


 


(5)           transfers of
damaged, worn-out or obsolete equipment or assets that, in the Company’s
reasonable judgment, are no longer used or useful in the business of the
Company or its Restricted Subsidiaries;


 


(6)           sales or grants of
licenses or sublicenses to use the patents, trade secrets, know-how and other
intellectual property, and licenses, leases or subleases of other assets, of
the Company or any Restricted Subsidiary in the ordinary course of business to
the extent not materially interfering with the business of Company and the
Restricted Subsidiaries;


 


(7)           a transfer of assets
between or among the Company and its Restricted Subsidiaries;


 


(8)           an issuance of
Equity Interests of the Company to Parent, by a Restricted Subsidiary of the
Company to the Company or to a Restricted Subsidiary of the Company;


 


(9)           any surrender or
waiver of contract rights or settlement, release, recovery on or surrender of
contract, tort or other claims in the ordinary course of business;


 


(10)         disposition of an
account receivable in connection with the collection or compromise thereof;


 


(11)         sales of inventory in
the ordinary course of business;


 


(12)         any transfer or
series of related transfers that, but for this clause, would be Asset Sales, if
after giving effect to such transfers, the aggregate Fair Market Value of the
assets transferred in such transaction or any such series of related
transactions does not exceed $2.0 million; and


 


(13)         any transfer or
series of related transfers of assets constituting Liquidity Collateral.


 


“Attributable Indebtedness,”
when used with respect to any Sale and Leaseback Transaction, means, as 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 any 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; provided, however, that if such sale and leaseback transaction results
in a Capitalized Lease Obligation,


 


3

















 


the amount of Indebtedness
represented thereby will be determined in accordance with the definition of a “Capitalized
Lease Obligation.”


 


“Authorized Representative”
means any agent, trustee or other duly authorized representative of the holders
of First Lien Obligations.


 


“Bankruptcy Law”
means any of Title 11 of the United States
Code, the Bankruptcy and
Insolvency Act (Canada), the Companies’
Creditors Arrangement Act (Canada), and the Winding-Up and Restructuring Act (Canada),
each as now and hereafter in effect, any successors to such statutes and any
other applicable insolvency, winding-up, dissolution, restructuring, reorganization,
liquidation or other similar law of any jurisdiction or any law of any
jurisdiction (including any corporate law relating to arrangements,
reorganizations or restructurings) permitting a debtor to obtain a stay or a
compromise of the claims of its creditors against it.


 


“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 after the passage of time and in Section 4.25 includes a
Person who is a beneficial  owner of
Notes for Canadian income tax purposes. 
The terms “beneficially owns” and “beneficially owned” have a corresponding meaning.


 


“Board of Directors”
means, with respect to any Person, (i) in the case of any corporation or
unlimited liability corporation, the board of directors of such Person, (ii) in
the case of any limited liability company, the board of managers of such Person,
(iii) in the case of any limited partnership, the Board of Directors of
the general partner of such Person, (iv) in the case of any general
partnership with a managing partner, the Board of Directors of the managing
partner of such Person, or if there is no managing partner, the Board of
Directors of each general partner of such Person and (v) in any other
case, the functional equivalent of the foregoing or, in each case, other than
for purposes of the definition of “Change of Control,” any duly authorized
committee of such body.


 


“Borrowing Base”
means an amount equal to the amount of (a) 85% of inventory, plus (b) 85%
of accounts receivable, plus (c) cash and Cash Equivalents, minus (d) accounts
payable, in each case for the Company and any guarantor of any Liquidity
Facility as set forth on the balance sheet of the Company delivered to the
Holders pursuant to Section 4.03.


 


“Broker-Dealer”
has the meaning set forth in the Registration Rights Agreement.


 


“Business Day”
means a day other than a Saturday, Sunday or other day on which banking institutions
in New York are authorized or required by law or executive order to close.


 


“Canadian Subsidiary
Guarantee” means a guarantee executed by each Subsidiary Guarantor
that is organized under the laws of Canada or any province or territory therein
in substantially the form attached hereto as Exhibit G-2.


 


4

















 


“Capitalized Lease”
means a lease required to be capitalized for financial reporting purposes in
accordance with GAAP.


 


“Capitalized Lease
Obligations” of any Person means the obligations of such Person to
pay rent or other amounts under a Capitalized Lease, and the amount of such
obligation shall be the capitalized amount thereof determined in accordance
with GAAP.


 


“Cash Equivalents”
means:


 


(1)           United
States dollars or Canadian dollars;


 


(2)           securities
issued or directly and fully guaranteed or insured by the Canadian or United
States government or any agency or instrumentality of the Canadian or United
States government (provided that
the full faith and credit of Canada or 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 six months or less
from the date of acquisition, bankers’ acceptances with maturities not exceeding
365 days and overnight bank deposits, in each case, with any bank referred to
in Schedule I or Schedule II of the Bank Act
(Canada) or rated at least A-1 or the equivalent thereof by S&P, at least
P-1 or the equivalent thereof by Moody’s or at least R-1 or the equivalent
thereof by Dominion Bond Rating Service Limited;


 


(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 one of the two highest ratings obtainable from Moody’s or S&P
or, with respect to Canadian commercial paper, having one of the two highest ratings
obtainable from Dominion Bond Rating Service Limited, and, in each case, maturing
within one year 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.


 


“Change of
Control” means the occurrence of any of the following events:


 


(1)           prior
to a Public Equity Offering after the Issue Date, the Permitted Holders cease
to own, or to have the power to vote or direct the voting of, in each case, directly
or indirectly, Voting Stock representing more than 50% of the voting power of
the total outstanding Voting Stock of the Parent or the Company;


 


(2)           any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of
the Exchange Act, except that in no event shall the parties to the Stockholders’
Agreement be deemed a “group” solely by virtue of being parties to the Stockholders’
Agreement), other than one or more Permitted Holders, is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act, except that for purposes 


 


5

















 


of this clause that person
or group shall be deemed to have “beneficial ownership” of all securities that
any such person or group has the right to acquire (other than any right
conditioned on anything outside such person’s or group’s control other than for
the passage of time), directly or indirectly, of Voting Stock representing 50%
or more of the voting power of the total outstanding Voting Stock of Parent or
the Company;


 


(3)           during
any period of two consecutive years, individuals who at the beginning of such
period constituted the Board of Directors of Parent or the Company, as the case
may be (together with any new directors whose election to such Board of
Directors or whose nomination for election by the stockholders of Parent or the
Company, as the case may be, was approved by a vote of the majority of the
directors of Parent or the Company, as the case may be, then still in office
who were either directors at the beginning of such period or whose election or
nomination for election was previously so approved), cease for any reason to
constitute a majority of the Board of Directors of Parent or the Company;


 


(4)           (a) all
or substantially all of the assets of the Company and the Restricted Subsidiaries,
taken as a whole, are sold or otherwise transferred to any Person other than a
Wholly Owned Restricted Subsidiary or one or more Permitted Holders or (b) Parent
or the Company consolidates or merges with or into another Person or any Person
consolidates or merges with or into Parent or the Company, in either case under
this clause (4), in one transaction or a series of related transactions in
which immediately after the consummation thereof Persons beneficially owning
(as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, Voting Stock representing in the aggregate a majority of the total
voting power of the Voting Stock of Parent or the Company, as the case may be,
immediately prior to such consummation do not beneficially own (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, Voting Stock
representing a majority of the total voting power of the Voting Stock of Parent
or the Company, as the case may be, or the applicable surviving or transferee
Person; or


 


(5)           the
Company shall adopt a plan of liquidation or dissolution or any such plan shall
be approved by the stockholders of the Company.


 


For purposes of this definition, a Person
shall not be deemed to have beneficial ownership of securities subject to a
stock purchase agreement, merger agreement or similar agreement until the
consummation of the transactions contemplated by such agreement.


 


“Closing Date Liquidity
Amount” means $35.0 million contributed to the equity capital
of the Company by affiliates of the Sponsor on the date of the closing of the
Acquisition.


 


“Closing Date Liquidity
Facility” means that certain credit agreement, dated as of December 12,
2008, among the lenders party thereto, Royal Bank of Canada, as administrative
agent and collateral agent for the lenders, Royal Bank of Canada, as syndication
agent, Royal Bank of Canada and UBS Securities LLC as lead arrangers, UBS Loan
Finance LLC, as documentation agent, the Company and the subsidiaries of the
Company identified on the title page and signature pages thereto as
guarantors.


 


6

















 


“Collateral”
means, collectively, all of the Security Agreement Collateral, the Mortgaged
Property and all other property of whatever kind and nature subject or
purported to be subject from time to time to a Lien under any Collateral
Document, except Excluded Property.


 


“Collateral Account”
means the collateral account established pursuant to the Collateral Documents.


 


“Collateral Agent”
means the Person named as the “Collateral Agent” in the first paragraph of this
instrument in its capacity as Collateral Agent under this Indenture and the
Collateral Documents until a successor replaces it in accordance with the
applicable provisions of this Indenture and the Collateral Documents.


 


“Collateral Documents”
shall mean, collectively, the Security Agreements, the Note Guarantees, the
Debentures, the mortgages and each other security document or pledge agreement
delivered in accordance with applicable local or foreign law to grant a valid,
perfected security interest in any property as collateral for the First Lien
Obligations, and all UCC, PPSA or other financing statements or instruments of
perfection required by any Security Agreement, the Note Guarantees, the
Debentures, any mortgage or any other such security document or pledge
agreement to be filed with respect to the security interests in property and
fixtures created pursuant to any Security Agreement, the Note Guarantees, the
Debentures or any mortgage and any other document or instrument utilized to
pledge or grant or purport to pledge or grant a security interest or lien on
any property as collateral for the First Lien Obligations.


 


“Collateral Other Than
After Acquired Collateral Net Proceeds Offered Price” means:


 


(a)           prior
to June 1, 2012, 111.75% of the principal amount of the Notes to be
purchased, plus accrued and unpaid interest thereon, if any, to the date of
purchase pursuant to the applicable Asset Sale Offer;


 


(b)           at
any time on or after June 1, 2012 and prior to June 1, 2013, 105.875%
of the principal amount of the Notes to be purchased, plus accrued and unpaid
interest thereon, if any, to the date of purchase pursuant to the applicable
Asset Sale Offer; and


 


(c)           at
any time on or after June 1, 2013, 100% of the principal amount of the
Notes to be purchased, plus accrued and unpaid interest thereon, if any, to the
date of purchase pursuant to the applicable Asset Sale Offer.


 


“Company” has
the meaning assigned to it in the preamble to this Indenture.


 


“Consolidated Amortization
Expense” for any period means the amortization expense of the
Company and the Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP.


 


“Consolidated Cash Flow”
for any Person and any period means, without duplication, the Consolidated Net
Income of such Person for such period plus the following:


 


(1)           in
each case only to the extent (and in the same proportion) deducted in
determining Consolidated Net Income and with respect to the portion of
Consolidated


 


7

















 


Net Income attributable to
any Restricted Subsidiary only if a corresponding amount would be permitted at
the date of determination to be distributed to the Company by such Restricted
Subsidiary without prior approval (that has not been obtained), pursuant to the
terms of its charter and all agreements, instruments, judgments, decrees,
orders, statutes, rules and governmental regulations applicable to such
Restricted Subsidiary or its stockholders, Consolidated Income Tax Expense,
Consolidated Amortization Expense, Consolidated Depreciation and Accretion
Expense, and Consolidated Interest Expense, in each case to the extent reducing
Consolidated Net Income, in each case determined on a consolidated basis in
accordance with GAAP; plus


 


(2)           in
each case only to the extent (and in the same proportion) deducted in
determining Consolidated Net Income and with respect to the portion of
Consolidated Net Income attributable to any Restricted Subsidiary only if a
corresponding amount would be permitted at the date of determination to be
distributed to the Company by such Restricted Subsidiary without prior approval
(that has not been obtained), pursuant to the terms of its charter and all
agreements, instruments, judgments, decrees, orders, statutes, rules and
governmental regulations applicable to such Restricted Subsidiary or its stockholders,
the aggregate amount of all other non-cash charges, expenses or losses that reduce
such Consolidated Net Income (including any impairment charges and the impact
of purchase accounting, including, but not limited to, the amortization of
inventory step-up), in each case determined on a consolidated basis in
accordance with GAAP; plus


 


(3)           any
reasonable expenses or charges incurred in connection with any equity offering
(but if such equity offering is a sale of Equity Interests in any part of the
Company, only to the extent that proceeds of such equity offering are received
by or contributed to the equity of the Company), Permitted Investment,
acquisition, recapitalization or Indebtedness permitted to be incurred under
this Indenture (in each case whether or not consummated) or pursuant to the
Transactions (including, without limitation, the fees payable pursuant to the
Management Agreement in connection with the Transactions), in each case
determined on a consolidated basis in accordance with GAAP; plus


 


(4)           the
amount of management, monitoring, consulting and advisory fees, termination
payments and related expenses paid to the Sponsor (or any accruals relating to
such fees and related expenses) during such period pursuant to the Management
Agreement, in each case determined on a consolidated basis in accordance with
GAAP; plus


 


(5)           operating
expense reductions and other operating improvements, synergies or costs savings
that have been realized or are reasonably anticipated to be realizable within
twelve (12) months of any Investment, acquisition, disposition, merger,
consolidation, discontinued operation or action being given pro forma effect
(including, to the extent applicable, from the Transactions), calculated on a
basis consistent with Regulation S-X under the Exchange Act; plus


 


(6)           all
adjustments of the nature used in connection with the calculation of “Pro Forma
Adjusted EBITDA” as set forth in note 2 to the “Offering Memorandum Summary—
Summary Unaudited Pro Forma Financial Information” contained in the Offering


 


8

















 


Memorandum to the extent
such adjustments continue to be applicable and, with respect to the stand-alone
costs, to the extent actually incurred, during the period in which Consolidated
Cash Flow is being calculated; plus


 


(7)           any
net after-tax gains or losses on disposal of discontinued operations determined
on a consolidated basis in accordance with GAAP; minus


 


(8)           the
aggregate amount of all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income for such period.


 


“Consolidated Depreciation
and Accretion Expense” for any period means the depreciation and
accretion expense of the Company and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP.


 


“Consolidated Income Tax
Expense” for any period means the provision for taxes of the Company
and the Restricted Subsidiaries, determined on a consolidated basis in accordance
with GAAP.


 


“Consolidated Interest
Coverage Ratio” means the ratio of Consolidated Cash Flow during the
most recent four consecutive full fiscal quarters for which financial
statements are available (the “Four-Quarter Period”)
ending on or prior to the date of the transaction giving rise to the need to
calculate the Consolidated Interest Coverage Ratio (the “Transaction
Date”) to Consolidated Interest Expense for the Four-Quarter
Period.  For purposes of this definition,
Consolidated Cash Flow and Consolidated Interest Expense shall be calculated in
good faith by an Officer of the Company giving effect on a pro forma basis for
the period of such calculation to:


 


(1)           the
incurrence of any Indebtedness or the issuance of any Preferred Stock of the Company
or any Restricted Subsidiary (and the application of the proceeds thereof) and
any repayment of other Indebtedness or redemption of other Preferred Stock (and
the application of the proceeds therefrom) (other than the incurrence or
repayment of Indebtedness in the ordinary course of business for working
capital purposes pursuant to any revolving credit arrangement) occurring during
the Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such
incurrence, repayment, issuance or redemption, as the case may be (and the
application of the proceeds thereof), occurred on the first day of the
Four-Quarter Period; and


 


(2)           any
Asset Sale or Asset Acquisition (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or any Restricted Subsidiary (including any Person who becomes a
Restricted Subsidiary as a result of such Asset Acquisition) incurring Acquired
Indebtedness and also including any Consolidated Cash Flow (including any pro
forma expense and cost reductions calculated on a basis consistent with
Regulation S-X under the Exchange Act) associated with any such Asset
Acquisition) occurring during the Four-Quarter Period or at any time subsequent
to the last day of the Four-Quarter Period and on or prior to the Transaction
Date, as if such Asset Sale or Asset Acquisition (including the incurrence of, 


 


9

















 


or assumption or liability
for, any such Indebtedness or Acquired Indebtedness) occurred on the first day
of the Four-Quarter Period. 


 


In calculating Consolidated Interest Expense for
purposes of determining the denominator (but not the numerator) of this
Consolidated Interest Coverage Ratio:


 


(1)           interest
on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be deemed to have accrued at a fixed rate per annum equal to the rate of
interest on such Indebtedness in effect on the Transaction Date;


 


(2)           if
interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or
similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to have been in
effect during the Four-Quarter Period; and


 


(3)           notwithstanding
clause (1) or (2) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements
relating to Hedging Obligations, shall be deemed to accrue at the rate per
annum resulting after giving effect to the operation of these agreements.


 


“Consolidated Interest
Expense” for any period means the sum, without duplication, of the
total interest expense of the Company and the Restricted Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP and
including, without duplication,


 


(1)           imputed
interest on Capitalized Lease Obligations and Attributable Indebtedness,


 


(2)           commissions,
discounts and other fees and charges owed with respect to letters of credit
securing financial obligations, bankers’ acceptance financing and receivables
financings,


 


(3)           the
net costs associated with Hedging Obligations related to interest rates,


 


(4)           the
interest portion of any deferred payment obligations,


 


(5)           all
other non-cash interest expense,


 


(6)           capitalized
interest,


 


(7)           the
product of (a) all dividend payments on any series of Disqualified Equity
Interests of the Company or any Preferred Stock of any Restricted Subsidiary
(other than any such Disqualified Equity Interests or any Preferred Stock held
by the Company or a Wholly Owned Restricted Subsidiary or to the extent paid in
Qualified Equity Interests), multiplied  by (b) a fraction, the numerator of which is one and
the denominator of which is one minus the then
current combined federal, state and local statutory tax rate of the Company and
the Restricted Subsidiaries, expressed as a decimal,


 


10

















 


(8)           all
interest payable with respect to discontinued operations, and


 


(9)           all
interest on any Indebtedness described in clause (7) or (8) of the
definition of “Indebtedness.”


 


For the avoidance of doubt, Consolidated Interest
Expense shall not include amortization or accretion (calculated in accordance
with GAAP) of debt issuance costs and other financing fees and expenses.


 


“Consolidated Net Income”
for any period means the net income (or loss) of the Company and the Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP; provided that there shall be excluded
from such net income (to the extent otherwise included therein), without
duplication:


 


(1)           the
net income (or loss) of any Person that is not a Restricted Subsidiary, except
to the extent that cash in an amount equal to any such income has actually been
received by the Company or, subject to clause (3) below, any Restricted
Subsidiary during such period;


 


(2)           the
net income of any Restricted Subsidiary during such period to the extent that
the declaration or payment of dividends or similar distributions by such Restricted
Subsidiary of that income is not permitted by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period,
except (a) to the extent such prohibition has been waived and (b) that
the Company’s equity in a net loss of any such Restricted Subsidiary for such
period shall be included in determining Consolidated Net Income;


 


(3)           for
the purposes of calculating the Restricted Payments Basket only, in the case of
a successor to the Company by consolidation, merger or transfer of its assets,
any income (or loss) of the successor prior to such merger, consolidation or
transfer of assets;


 


(4)           other
than for purposes of calculating the Restricted Payments Basket, any gain (or
loss), together with any related provisions for taxes on any such gain (or the
tax effect of any such loss), realized during such period by the Company or any
Restricted Subsidiary upon (a) the acquisition of any securities, or the
extinguishment of any Indebtedness, of the Company or any Restricted Subsidiary
or (b) any Asset Sale by the Company or any Restricted Subsidiary;


 


(5)           unrealized
gains and losses due solely to fluctuations in currency values on long-term
debt and any current portion thereof;


 


(6)           non-cash
gains and losses attributable to movement in the mark-to-market valuation of
Hedging Obligations or the Hunting Preferred Stock;


 


(7)           any
impairment charge or asset write-off or write-down;


 


11














 


(8)           any
after-tax effect of income or loss from the early extinguishment of Indebtedness;


 


(9)           any
non-cash compensation charge or expense recorded from grants of stock
appreciation or similar rights, stock options, restricted stock or other
rights;


 


(10)         the
cumulative effect of any change in accounting principles during such period;


 


(11)         other
than for purposes of calculating the Restricted Payments Basket, any
extraordinary or nonrecurring gain (or extraordinary or nonrecurring loss),
together with any related provision for taxes on any such extraordinary or
nonrecurring gain (or the tax effect of any such extraordinary or nonrecurring
loss), realized by the Company or any Restricted Subsidiary during such period;
and


 


(12)         the
effects of adjustments (including the effects of such adjustments pushed down
to the Company and its Restricted Subsidiaries) in the property, equipment,
inventory, software and other intangible assets, deferred revenue and debt line
items in such Person’s consolidated financial statements pursuant to GAAP
resulting from the application of recapitalization accounting or purchase
accounting in relation to the Transactions or any consummated acquisition or
the amortization or write-off of any amounts thereof, net of taxes.


 


In addition:


 


(a)           Consolidated
Net Income shall be reduced by the amount of any payments to or on behalf of
Parent made pursuant to Section 4.11(b)(4);


 


(b)           any
return of capital with respect to an Investment that increased the Restricted
Payments Basket pursuant to Section 4.07(a)(3)(D) or decreased the
amount of Investments outstanding pursuant to clause (12) of the definition of “Permitted
Investment” shall be excluded from Consolidated Net Income for purposes of
calculating the Restricted Payments Basket; and


 


(c)           to
the extent not already included in the net income of such Person and its
Restricted Subsidiaries, notwithstanding anything to the contrary in the
foregoing, Consolidated Net Income shall include the amount of proceeds
received from business interruption insurance and reimbursements of any
expenses and charges that are covered by indemnification or other reimbursement
provisions in connection with any Permitted Investment or any sale, conveyance,
transfer or other disposition of assets permitted under this Indenture.


 


For purposes of this definition of “Consolidated Net
Income,” “nonrecurring” means any gain or loss as
of any date that is not reasonably likely to recur within the two years
following such date; provided that
if there was a gain or loss similar to such gain or loss within the two years
preceding such date, such gain or loss shall not be deemed nonrecurring.


 


12

















 


“Consolidated Net Tangible
Assets” means the aggregate amount of assets (less applicable
reserves and other properly deductible items) after deducting therefrom (a) all
current liabilities (excluding any indebtedness for money borrowed having a
maturity of less than 12 months from the date of the most recent consolidated
balance sheet of the Company but which by its terms is renewable or extendable
beyond 12 months from such date at the option of the Company) and (b) all
goodwill, trade names, patents, unamortized debt discount and expense and any
other like intangibles, all as set forth on the most recent consolidated
balance sheet of the Company and computed in accordance with GAAP.


 


“Contested
Collateral Lien Conditions” means, with respect to any Permitted
Lien of the type described in clauses (2), (3) and (5) of the
definition of “Permitted Liens,” that the Company shall cause any proceeding
instituted contesting such Lien to stay the sale or forfeiture of any portion
of the Collateral on account of such Lien.


 


“Controlled Investment
Affiliate” means, as to any Person, any other Person that directly
or indirectly is in control of, is controlled by, or is under common control
with such Person and is organized by such Person (or any Person controlling
such Person) primarily for making equity or debt investments in portfolio
companies.


 


“Corporate Trust Office”
of the Trustee means a principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the Issue Date
is located at 101 Barclay Street, 4E, New York, New York 10286 Attention:  Corporate Trust Division - Global Finance
Americas, or such other address as the Trustee may designate from time to time
by notice to the Holders and the Company, or the principal corporate trust
office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the
Company).


 


“Coverage Ratio Exception”
has the meaning set forth in the proviso to Section 4.09(a).


 


“Custodian”
means any receiver, receiver manager, trustee, assignee, liquidator, monitor or
similar official under any Bankruptcy Law.


 


“Debentures”
means collectively, (i) the demand debenture dated as of the Issue Date
made by the Company to and in favor of the Collateral Agent for the benefit of
the Secured Creditors (as defined therein), (ii) the demand debenture
dated as of the Issue Date made by the Guarantors and Finance Corp. to and in
favor of the Collateral Agent for the benefit of the Secured Creditors (as
defined therein) and (iii) any other debenture or mortgage made by any of
the Issuers or the Guarantors to and in favor of the Collateral Agent in
connection with this Indenture or any Collateral Document.


 


“Default” means (1) any
Event of Default or (2) any event, act or condition that, after notice or
the passage of time or both, would be an Event of Default.


 


“Definitive Note”
means a certificated Note registered in the name of the Holder thereof and issued
in accordance with Section 2.06 hereof, substantially in the form of Exhibit A
hereto except that such Note shall not bear the Global Note Legend and shall
not have the “Schedule of Exchanges of Interests in the Global Note” attached
thereto.


 


13

















 


“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, DTC, and any and all successors thereto appointed as depositary
hereunder and having become such pursuant to the applicable provision of this
Indenture.


 


“Designation”
has the meaning given to this term in Section 4.18.


 


“Designation Amount” has the meaning given to
this term in Section 4.18.


 


“Disqualified Equity
Interests” of any Person means any class of Equity Interests of such
Person that, by its terms, or by the terms of any related agreement or of any
security into which it is convertible, puttable or exchangeable (in each case
at the option of the holder), is, or upon the happening of any event or the
passage of time would be, required to be redeemed by such Person, whether or
not at the option of the holder thereof, or matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, in whole or in part, on or
prior to the date which is 91 days after the final maturity date of the Notes; provided, however, that
any class of Equity Interests of such Person that, by its terms, authorizes
such Person to satisfy in full its obligations with respect to the payment of
dividends or upon maturity, redemption (pursuant to a sinking fund or
otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests
that are not Disqualified Equity Interests, and that is not convertible,
puttable or exchangeable for Disqualified Equity Interests or Indebtedness,
will not be deemed to be Disqualified Equity Interests so long as such Person
satisfies its obligations with respect thereto solely by the delivery of Equity
Interests that are not Disqualified Equity Interests; provided,
further, however,
that any Equity Interests that would not constitute Disqualified Equity
Interests but for provisions thereof giving holders thereof (or the holders of
any security into or for which such Equity Interests are convertible,
exchangeable or exercisable) the right to require the Company to redeem such
Equity Interests upon the occurrence of a change of control or an asset sale
occurring prior to the 91st calendar day after the final maturity date of the
Notes shall not constitute Disqualified Equity Interests if the change of
control or asset sale provisions applicable to such Equity Interests are no
more favorable to such holders than Sections 3.08, 4.10 and 4.15, respectively,
and such Equity Interests specifically provide that the Company will not redeem
any such Equity Interests in connection with an asset sale or change of control
pursuant to such provisions prior to the Company’s purchase of the Notes as
required in connection with such Asset Sale pursuant to Sections 3.08, 4.10 and
4.15, respectively.


 


“Dollar Equivalent”
of any amount means, at the time of determination thereof,


 


(1)           if
such amount is expressed in U.S. dollars, such amount, and


 


(2)           if
such amount is expressed in any other currency, the equivalent of such amount
in U.S. dollars determined by using the rate of exchange quoted by UBS, AG in
New York, New York at 11:00 a.m. (New York time) on the date of
determination (or, if such date is not a Business Day, the last Business Day
prior thereto) to prime banks in New York for the spot purchase in the New York
currency exchange market of such amount of U.S. dollars with such currency.


 


“dollars” or “$” means lawful money of the United States.


 


14

















 


“Equity Interests”
of any Person means (1) any and all shares or other equity interests
(including common stock, preferred stock, limited liability company interests,
unlimited liability corporation interests and partnership interests) in such
Person and (2) all rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests in
(however designated) such shares or other interests in such Person.


 


“Event of Loss”
means, with respect to any property or asset (tangible or intangible, real or
personal) constituting Collateral, any of the following:


 


(i)            any
loss, destruction or damage of such property or asset;


 


(ii)           any
actual condemnation, expropriations, seizure or taking by exercise of the power
of eminent domain or otherwise of such property or asset, or confiscation of
such property or asset or the requisition of the use of such property or asset;
or


 


(iii)          any
settlement in lieu of clause (ii) above.


 


“Exchange Act”
means the U.S. Securities Exchange Act of 1934, as amended.


 


“Exchange Notes”
means the Notes issued in the Exchange Offer referenced in Section 2.06(f) hereof.


 


“Exchange Offer”
has the meaning set forth in the Registration Rights Agreement.


 


“Exchange Offer
Registration Statement” has the meaning set forth in the
Registration Rights Agreement.


 


“Excluded Property”
has the meaning assigned to such term in the Security Agreements.


 


“Excluded Subsidiary”
means (a) each Immaterial Subsidiary, for so long as such subsidiary
remains an Immaterial Subsidiary, (b) each Restricted Subsidiary that is
not a wholly owned Subsidiary on any date such Restricted Subsidiary would
otherwise be required to become a Guarantor pursuant to the requirements of
this Indenture (for so long as such Restricted Subsidiary remains a non-wholly
owned Restricted Subsidiary), (c) each Unrestricted Subsidiary, (d) each
Restricted Subsidiary to the extent that (i) such Restricted Subsidiary is
prohibited by any applicable contractual obligation or requirement of law from
guaranteeing the Obligations, (ii) any contractual obligation prohibits
such guarantee without the consent of the other party or (iii) a guarantee
of the Obligations would give any other party to a contractual obligation the
right to terminate its obligation thereunder; provided
that clauses (ii) and (iii) shall not be applicable if (A) such
other party is a Restricted Subsidiary or a wholly owned Subsidiary or (B) consent
has been obtained to provide such guarantee and for so long as such contractual
obligation or replacement or renewal thereof is in effect or (e) any
Securitization Subsidiary.


 


“Fair Market Value”
means, with respect to any asset, the price (after taking into account any
liabilities relating to such assets) that would be negotiated in an arm’s-length
transaction for cash between a willing seller and a willing and able buyer,
neither of which is under any compulsion to complete the transaction, as such
price is determined in good faith by the Board of Directors


 


15

















 


of the Company or a duly
authorized committee thereof, as evidenced by a resolution of such Board or
committee.


 


“Finance Corp.”
has the meaning assigned to it in the preamble to this Indenture.


 


“First Lien Obligations”
means, collectively:


 


(1)           Indebtedness
of the Issuers represented by the Notes issued on the Issue Date, Indebtedness
of the Guarantors under the Note Guarantees with respect to the Notes issued on
the Issue Date and all other payment obligations of the Issuers and the Guarantors
under this Indenture with respect thereto; and


 


(2)           any
Indebtedness and other obligations of the Issuers and/or the Guarantors secured
by a Lien on the Collateral (including any Additional Notes) designated by the
Company as “First Lien Obligations” for purposes of the Collateral Documents
and the Intercreditor Agreement; provided that
such Indebtedness is permitted to be incurred by this Indenture and either (i) such
Indebtedness constitutes Refinancing Indebtedness secured by Liens referred to
in clause (20) under “Permitted Liens” in respect of First Lien Obligations or (ii) (A) after
giving effect to the issuance of such Indebtedness and the application of the
proceeds therefrom, the outstanding aggregate principal amount of all First
Lien Obligations does not exceed 110% of the aggregate principal amount of
Notes issued on the Issue Date and (B) the Authorized Representative of
the holders of such Indebtedness (other than any Additional Notes) executes a
joinder to the First Lien Collateral Documents.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the Canadian Institute of
Chartered Accountants, as in effect from time to time or any accounting
principles that may be adopted, recommended or required to be adopted, by the
Canadian Accounting Standards Board.


 


“Global Note Legend”
means the legend set forth in Section 2.06(g)(2) hereof, which is
required to be placed on all Global Notes issued under this Indenture.


 


“Global Notes”
means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes deposited with or on behalf of and registered in
the name of the Depository or its nominee, substantially in the form of Exhibit A
hereto and that bears the Global Note Legend and that has the “Schedule of
Exchanges of Interests in the Global Note” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or
2.06(f) hereof.


 


“Global Notes Custodian” means the Trustee, as
custodian with respect to the Notes in global form, or any successor entity
thereto.


 


“guarantee”
means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or
otherwise, of such Person (1) to purchase or pay (or advance or supply
funds for the purchase or payment of) Indebtedness of such other Person
(whether arising by virtue of partnership arrangements, or by 


 


16

















 


agreements to keep-well, to
purchase assets, goods, securities or services (unless such purchase
arrangements are on arm’s-length terms and are entered into in the ordinary
course of business), to take-or-pay, or to maintain financial statement
conditions or otherwise); or (2) entered into for purposes of assuring in
any other manner the obligee of such Indebtedness of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part); “guarantee,” when used as a verb, and “guaranteed”
have correlative meanings.


 


“Guarantors”
means Parent and each Restricted Subsidiary of the Company as of the Issue
Date, and each other Person that is required to, or at the election of the
Company does, become a Guarantor by the terms of this Indenture, the Parent
Guarantee or the Canadian Subsidiary Guarantee after the Issue Date, in each
case, until such Person is released from its Note Guarantee in accordance with
the terms of this Indenture, the Parent Guarantee or the Canadian Subsidiary
Guarantee, as applicable.


 


“Hedging Obligations”
of any Person means the obligations of such Person under swap, cap, collar,
forward purchase or similar agreements or arrangements dealing with interest
rates, currency exchange rates or commodity prices, either generally or under
specific contingencies.


 


“Holder” means a
Person in whose name a Note is registered in the register maintained by the
Registrar pursuant to this Indenture.


 


“Hunting Preferred Stock”
means the preferred stock of Parent issued to 1441682 Alberta Ltd. on December 12,
2008 pursuant to the Sale and Purchase Agreement.


 


“IAI Global Note”
means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or
on behalf of and registered in the name of the Depositary or its nominee that
will be issued in a denomination equal to the outstanding principal amount of
the Notes sold to Institutional Accredited Investors.


 


“Immaterial Subsidiary”
means, on any date for which a consolidated balance sheet of the Company is
prepared, any Subsidiary of the Company that has less than 1.0% of the Company’s
Consolidated Net Tangible Assets or annual consolidated revenues; provided that at no time shall all Immaterial Subsidiaries
have in the aggregate Consolidated Net Tangible Assets or annual consolidated
revenues as of such date in excess of 3.0% of Consolidated Net Tangible Assets
or annual consolidated revenues, respectively, of the Company.


 


“incur” means,
with respect to any Indebtedness or Obligation, incur, create, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing
at the time such Person became a Restricted Subsidiary shall be deemed to have
been incurred by such Restricted Subsidiary and (2) neither the accrual of
interest nor the accretion of original issue discount nor the accretion nor
accumulation of dividends on any Equity Interests shall be deemed to be an
incurrence of Indebtedness.


 


“Indebtedness”
of any Person at any date means, without duplication and if and to the extent
that such items (other than letters of credit, Attributable Indebtedness and
Hedging Obligations)


 


17

















 


would appear as a liability
on the balance sheet of the specified Person prepared in accordance with GAAP
(other than the Hunting Preferred Stock (so long as the Hunting Preferred Stock
is not considered a Disqualified Equity Interest of the Company)):


 


(1)           all
liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof);


 


(2)           all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;


 


(3)           all
reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty, bankers’ acceptances and similar credit transactions;


 


(4)           all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except trade payables and accrued expenses incurred by
such Person in the ordinary course of business in connection with obtaining
goods, materials or services;


 


(5)           the
maximum fixed redemption or repurchase price of all Disqualified Equity Interests
of such Person;


 


(6)           all
Capitalized Lease Obligations of such Person;


 


(7)           all
Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;


 


(8)           all
Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided that Indebtedness of the
Company or its Subsidiaries that is guaranteed by the Company or the Company’s
Subsidiaries shall only be counted once in the calculation of the amount of
Indebtedness of the Company and its Subsidiaries on a consolidated basis;


 


(9)           all
Attributable Indebtedness; and


 


(10)         to
the extent not otherwise included in this definition, Hedging Obligations of
such Person;


 


provided that
obligations under letters of credit and Hedging Obligations that are fully cash
collateralized shall not constitute Indebtedness for the purposes of this Indenture
and the cash used for cash collateralization purposes shall constitute
restricted cash.


 


The amount of any Indebtedness that is incurred at a
discount to the principal amount at maturity thereof as of any date shall be
deemed to have been incurred at the accreted value thereof as of such
date.  The amount of Indebtedness of any
Person at any date shall be the outstanding balance at such date of all
unconditional obligations as described above, the maximum liability of such
Person for any such contingent obligations at such date and, in the case of
clause (7), the lesser of (a) the Fair Market Value of any asset subject
to a Lien securing the Indebtedness


 


18

















 


of others on the date that
the Lien attaches and (b) the amount of the Indebtedness secured.  For purposes of clause (5), the “maximum
fixed redemption or repurchase price” of any Disqualified Equity Interests that
do not have a fixed redemption or repurchase price shall be calculated in
accordance with the terms of such Disqualified Equity Interests as if such
Disqualified Equity Interests were redeemed or repurchased on any date on which
an amount of Indebtedness outstanding shall be required to be determined
pursuant to this Indenture.


 


“Indenture”
means this Indenture, as amended or supplemented from time to time.


 


“Independent Director”
means a director of the Company who is independent with respect to the
transaction at issue.


 


“Independent Financial
Advisor” means an accounting, appraisal or investment banking firm
of nationally recognized standing that is, in the reasonable judgment of the Company’s
Board of Directors, qualified to perform the task for which it has been engaged
and disinterested and independent with respect to the Company and its
Affiliates.


 


“Indirect Participant”
means a Person who holds a beneficial interest in a Global Note through a
Participant.


 


“Initial Notes”
means the first $560.0 million aggregate principal amount of Notes issued under
this Indenture on the Issue Date.


 


“Initial Purchasers” means UBS Securities LLC,
RBS Securities Inc. and RBC Capital Markets Corporation.


 


“Intercreditor Agreement”
means that certain notes/liquidity facility intercreditor agreement, dated as
of the Issue Date, by and among the Company, the Collateral Agent and the Liquidity
Facility Agent, as the same may be amended, supplemented or otherwise modified
from time to time.


 


“Institutional Accredited
Investor” means an institution that is an “accredited investor” as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act that
is not also a QIB.


 


“interest”
means, with respect to the Notes, interest and Additional Interest, if any, on
the Notes.


 


“Investments” of
any Person means:


 


(1)           all
direct or indirect investments by such Person in any other Person in the form
of loans, advances or capital contributions or other credit extensions
constituting Indebtedness of such other Person, and any guarantee of
Indebtedness of any other Person;


 


(2)           all
purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Equity Interests or other securities of any other Person (other
than any such purchase that constitutes a Restricted Payment of the type
described in clause (2) of the definition thereof);


 


19

















 


(3)           all
other items that would be classified as investments on a balance sheet of such
Person prepared in accordance with GAAP (including, if required by GAAP, purchases
of assets outside the ordinary course of business); and


 


(4)           the
Designation of any Subsidiary as an Unrestricted Subsidiary.


 


Except as otherwise expressly specified in
this definition, the amount of any Investment (other than an Investment made in
cash) shall be the Fair Market Value thereof on the date such Investment is
made.  The amount of Investment pursuant
to clause (4) shall be the Designation Amount determined in accordance
with Section 4.18.  If the Company
or any Restricted Subsidiary sells or otherwise disposes of any Equity
Interests of any Restricted Subsidiary, or any Restricted Subsidiary issues any
Equity Interests, in either case, such that, after giving effect to any such
sale or disposition, such Person is no longer a Subsidiary, the Company shall
be deemed to have made an Investment on the date of any such sale or other
disposition equal to the Fair Market Value of the Equity Interests of and all
other Investments in such Restricted Subsidiary retained.  Notwithstanding the foregoing, purchases or
redemptions of Equity Interests of the Company or Parent shall be deemed not to
be Investments.


 


“Issue Date”
means the date on which the Notes are originally issued.


 


“Issuers” has
the meaning assigned to it in the preamble to this Indenture.


 


“Issuers’ Guarantee”
means a guarantee executed by the Issuers in substantially the form of Exhibit G-3
hereto.


 


“Letter of Transmittal”
means the letter of transmittal to be prepared by the Company and sent to all
Holders of the Notes for use by such Holders in connection with the Exchange
Offer.


 


“Lien”
means, with respect to any asset, any mortgage, deed of trust, hypothec, lien
(statutory or other), pledge, lease, easement, restriction, covenant, charge
(including a floating charge), security interest or other encumbrance of any
kind or nature in respect of such asset, whether or not filed, registered or
otherwise perfected under applicable law, including any conditional sale or
other title retention agreement.


 


“Liquidity Collateral”
shall have the definition assigned to such term in the Intercreditor Agreement,
it being understood that, to the extent such definition is replaced by a new
definition pursuant to an intercreditor agreement related to a new permitted
Liquidity Facility, such new definition will be applicable; provided that such new definition shall not expand the scope
of assets included in such Liquidity Collateral.


 


“Liquidity Facilities”
means one or more debt facilities providing for revolving credit loans, term
loans, or letters of credit (including any Qualified Securitization
Transaction), working capital-based debt financing arrangements, in each case,
as such agreements may be amended, refinanced or otherwise restructured, in whole
or in part from time to time (including increasing the amount of available
borrowings thereunder or adding Subsidiaries of the Company as additional
borrowers or guarantors thereunder) with respect to all or any portion of the
Indebtedness


 


20

















 


under any such agreement or
transaction or any successor or replacement agreement or agreements and whether
by the same or any other agent, lender or group of lenders.


 


“Liquidity Facility Agent”
means Royal Bank of Canada, in its capacity as collateral agent under the
Closing Date Liquidity Facility, and its successors and assigns.


 


“Liquidity Facility
Obligations” means the Indebtedness of the Company represented by
loans under any Liquidity Facility.


 


“Management Agreement”
means the Management Agreement dated as of December 12, 2008 between
Riverstone Equity Partners L.P. and the Company and as such management agreement
may be amended or replaced; provided, however, that the terms of any such amendment or replacement
agreement are not, as a whole, less favorable to the Holders in any material
respect than the original agreement.


 


“Moody’s” means
Moody’s Investors Service, Inc. and its successors.


 


“Mortgage” means
an agreement, including, but not limited to, a mortgage, the Debentures, deed
of trust or any other document, creating and evidencing a Lien on a Mortgaged
Property, which shall be substantially in the form of either of the Debentures
issued on the Issue Date or another form satisfactory to the Collateral Agent,
in each case, with such schedules and including such provisions as shall be
necessary to conform such document to applicable local or foreign law or as
shall be customary under applicable local or foreign law.


 


“Mortgaged Property”
means (a) the real property set forth on Schedule 5(a) of the
Perfection Certificate under the heading Fixed Charge Mortgage Property, (b) the
real property set forth on Schedule 5(a) of the Perfection
Certificate under the heading Floating Charge Mortgage Property and (c) any
real property which is subject to a Mortgage delivered after the Issue Date pursuant
to Section 4.23.


 


“Net Available Proceeds”
means, with respect to any Asset Sale, the proceeds thereof in the form of cash
or Cash Equivalents, net of the selling costs associated with such Asset Sale,
including:


 


(1)           brokerage
commissions and other fees and expenses (including fees, discounts and expenses
of legal counsel, accountants and investment banks, consultants and placement
agents) of such Asset Sale;


 


(2)           provisions
for taxes payable as a result of such Asset Sale (after taking into account any
available tax credits or deductions and any tax sharing arrangements);


 


(3)           amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary and other than under a Liquidity Facility) owning a beneficial interest
in the assets subject to the Asset Sale or having a Lien thereon;


 


(4)           payments
of unassumed liabilities (not constituting Indebtedness) relating to the assets
sold at the time of, or within 30 days after the date of, such Asset Sale; and


 


21

















 


(5)           appropriate
amounts to be provided by the Company or any Restricted Subsidiary, as the case
may be, as a reserve required in accordance with GAAP against any adjustment in
the sale price of such asset or assets or liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including pensions and other postemployment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officer’s Certificate delivered to the Trustee; provided, however, that any
amounts remaining after adjustments, revaluations or liquidations of such
reserves shall constitute Net Available Proceeds.


 


“Net Loss Proceeds”
means the aggregate cash proceeds received by the Company or any Guarantor in
respect of any Event of Loss, including, without limitation, insurance
proceeds, condemnation awards or damages awarded by any judgment, net of the
direct cost in recovery of such Net Loss Proceeds (including, without
limitation, legal, accounting, appraisal and insurance adjuster fees and any
relocation expenses incurred as a result thereof), amounts required to be
applied to the repayment of Indebtedness secured by any Permitted Lien on the
asset or assets that were the subject of such Event of Loss, and any taxes paid
or payable as a result thereof.


 


“Non-Recourse Debt”
means Indebtedness of an Unrestricted Subsidiary:


 


(1)           as
to which neither the Company nor any Restricted Subsidiary (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) constitutes the lender;


 


(2)           no
default with respect to which (including any rights that the holders thereof
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 a Liquidity Facility or the Notes) of the Company or any Restricted
Subsidiary to declare a default on the other Indebtedness or cause the payment
thereof 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 Equity Interests or assets of the Company or any Restricted Subsidiary.


 


“Non-U.S. Person”
means a Person who is not a U.S. Person.


 


“Note Guarantee”
means a guarantee of the Notes by a Guarantor in accordance with this
Indenture, the Issuers’ Guarantee, the Parent Guarantee or the Canadian
Subsidiary Guarantee, as applicable.


 


“Notes” has the
meaning assigned to it in the preamble to this Indenture.  The Initial Notes and the Additional Notes
(and any Exchange Notes issued in exchange therefor) shall be treated as a
single class for all purposes under this Indenture, and unless the context
otherwise requires, all references to the Notes shall include the Initial Notes
and any Additional Notes (and any Exchange Notes issued in exchange therefor).


 


22

















 


“Obligation”
means any principal, interest (including any interest accruing subsequent to
the filing of a petition in bankruptcy, reorganization or similar proceeding at
the rate provided for in the documentation with respect thereto, whether or not
such interest is an allowed claim under applicable state, federal or foreign
law), penalties, fees, indemnifications, reimbursements (including
reimbursement obligations with respect to letters of credit and banker’s
acceptances), damages and other liabilities, and guarantees of payment of such
principal, interest, penalties, fees, indemnifications, reimbursements, damages
and other liabilities, payable under the documentation governing any
Indebtedness.


 


“Offered Price”
means the Collateral Other Than After Acquired Collateral Net Proceeds Offered
Price or the Other Offered Price, as the case may be.


 


“Offering Memorandum”
means the final offering memorandum dated May 21, 2009 relating to the
offering and sale of the Notes.


 


“Officer” means
any of the following of the Company, or Finance Corp. or a Guarantor, as
applicable:  the Chairman of the Board of
Directors, the Chief Executive Officer, the Chief Financial Officer, the
Manager of Treasury, the President, any Senior Vice President, any Vice
President, the Treasurer or the Secretary.


 


“Officer’s Certificate”
means a certificate signed by any Officer.


 


“Opinion of Counsel”
means a written opinion from legal counsel (who may be an employee of or
counsel to the Issuers) who is reasonably acceptable to the Trustee.


 


“Parent” means
Gibson Energy Holding ULC, an Alberta unlimited liability corporation, and its
successors and assigns.


 


“Parent Guarantee”
means the guarantee executed by Parent in substantially the form attached
hereto as Exhibit G-1.


 


“Parent and Issuers
Security Agreement” means the security agreement, dated as of the
Issue Date, by and among the Company, Finance Corp., Parent and the Collateral
Agent, as the same may be amended, amended and restated or otherwise
supplemented in accordance with the terms hereof and thereof.


 


“Pari Passu Indebtedness”
means any Indebtedness of an Issuer or any Guarantor that ranks pari  passu in right
of payment with the Notes or the Note Guarantees, as applicable.


 


“Participant”
means, with respect to the Depositary, a Person who has an account with the Depositary.


 


“Perfection Certificate”
means the perfection certificate dated as of the Issue Date by each Issuer and
each Guarantor and delivered to the Collateral Agent, as the same may be supplemented
from time to time.


 


23






 










 


“Permitted Business”
means the businesses engaged in by the Company and its Subsidiaries on the
Issue Date as described in the Offering Memorandum and businesses that are reasonably
related, ancillary or complementary thereto or reasonable extensions thereof.


 


“Permitted Holder”
means Sponsor and its Controlled Investment Affiliates.


 


“Permitted Indebtedness”
is defined in Section 4.09(b).


 


“Permitted Investment”
means:


 


(1)           Investments by the Company or any Restricted
Subsidiary in (a) any Restricted Subsidiary or (b) any Person that
will become immediately after such Investment a Restricted Subsidiary or that
will merge or consolidate into the Company or a Restricted Subsidiary;


 


(2)           Investments in the Company by any Restricted
Subsidiary;


 


(3)           loans and advances to directors, employees and
officers of the Company and the Restricted Subsidiaries for bona  fide business
purposes and to purchase Equity Interests of the Company not in excess of $3.0
million at any one time outstanding;


 


(4)           Hedging Obligations entered into for bona fide
hedging purposes of the Company or any Restricted Subsidiary not for the
purpose of speculation;


 


(5)           cash and Cash Equivalents;


 


(6)           receivables owing to the Company or any Restricted
Subsidiary if created or acquired in the ordinary course of business and
payable or dischargeable in accordance with customary trade terms; provided, however, that
such trade terms may include such concessionary trade terms as the Company or
any such Restricted Subsidiary deems reasonable under the circumstances;


 


(7)           Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar
arrangement upon the bankruptcy or insolvency of such trade creditors or
customers;


 


(8)           Investments made by the Company or any Restricted
Subsidiary as a result of consideration received in connection with an Asset
Sale made in compliance with Section 4.10;


 


(9)           lease, utility and other similar deposits in the
ordinary course of business;


 


(10)         Investments made by the Company or a Restricted
Subsidiary for consideration consisting only of Qualified Equity Interests of
Parent or the Company;


 


(11)         guarantees (including Note Guarantees) of
Indebtedness permitted under Section 4.09 and performance guarantees in
the ordinary course of business;


 


24

















 


(12)         Investments consisting of purchases and acquisitions
of inventory, supplies, materials and equipment or purchases of contract rights
or licenses or leases of property, including intellectual property, in each
case in the ordinary course of business;


 


(13)         Investments of a Restricted Subsidiary of the
Company acquired after the Issue Date or of an entity merged into, amalgamated
with or consolidated with a Restricted Subsidiary of the Company in a
transaction that is not prohibited by Section 5.01 after the Issue Date to
the extent that such Investments were not made in contemplation of such
acquisition, merger, amalgamation or consolidation and were in existence on the
date of such merger, acquisition, amalgamation or consolidation;


 


(14)         stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to the
Company or any Restricted Subsidiary or in satisfaction of judgments;


 


(15)         the acquisition by a Securitization Subsidiary in
connection with a Qualified Securitization Transaction of Equity Interests of a
trust or other Person established by such Securitization Subsidiary to effect
such Qualified Securitization Transaction; and any other Investment by the
Company or a Subsidiary of the Company in a Securitization Subsidiary or any
Investment by a Securitization Subsidiary in any other Person in connection
with a Qualified Securitization Transaction; provided
that such other Investment is in the form of a note or other instrument that
the Securitization Subsidiary or other Person is required to repay as soon as
practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities that
are not Affiliates of the Company entered into as part of a Qualified Securitization
Transaction; and


 


(16)         other Investments in an aggregate amount not to
exceed the greater of (a) $20.0 million or (b) 2.0% of Consolidated
Net Tangible Assets, at any one time outstanding (with each Investment being
valued as of the date made and without regard to subsequent changes in value); provided that no Investment made in reliance on this clause
(16) shall be made in any Person that is the direct or indirect holder of a
majority of the outstanding Equity Interests of the Company.


 


The amount of Investments outstanding at any time
pursuant to clause (16) above shall be deemed to be reduced:


 


(a)           upon the disposition or repayment of or return on
any Investment made pursuant to clause (16) above, by an amount equal to the
return of capital with respect to such Investment to the Company or any
Restricted Subsidiary (to the extent not included in the computation of Consolidated
Net Income); and


 


(b)           upon a Redesignation of an Unrestricted Subsidiary
as a Restricted Subsidiary, by an amount equal to the lesser of (x) the
Fair Market Value of the Company’s proportionate interest in such Subsidiary
immediately following such Redesignation, and (y) the aggregate amount of
Investments in such Subsidiary that increased (and did not 


 


25

















 


previously decrease) the
amount of Investments outstanding pursuant to clause (16) above.


 


“Permitted Joint Venture
Payments” means payments by the Company or any Restricted Subsidiary,
including any amounts made as shareholder loans or capital contributions,
relating to any joint venture of the Company or any Restricted Subsidiary that
is engaged in a Permitted Business; provided, that
the Company shall use commercially reasonable efforts to cause its or any
Restricted Subsidiary’s equity interests in any such joint venture to be
pledged on a first lien basis in support of the Notes; provided,
further, that the aggregate amount of
Permitted Joint Venture Payments made by the Company or any Restricted
Subsidiary shall not exceed $10.0 million per annum.


 


“Permitted Liens”
means the following types of Liens:


 


(1)           Liens for taxes, assessments or governmental charges
or claims either (a) not delinquent or (b) contested in good faith by
appropriate proceedings and as to which the Company or the Restricted
Subsidiaries shall have set aside on its books such reserves as may be required
pursuant to GAAP; provided that in the case of any
such charge or claim that has or may become a Lien against any of the
Collateral, where applicable laws allow it to do so, the Company shall have
caused any proceeding instituted contesting such Lien to stay the sale or
forfeiture of any portion of the Collateral on account of such Lien;


 


(2)           Liens not securing any Indebtedness imposed or
otherwise created:


 


(a)           by statute including Liens of landlords, carriers,
pipeline operators, processors, warehousemen, mechanics, suppliers,
materialmen, repairmen or construction Liens or other similar Liens and other
Liens imposed by applicable law; and


 


(b)           by contract in favor of processors, carriers,
pipelines, warehousemen, mechanics, suppliers, materialmen, repairmen, storage
operators or other operators, in each case;


 


in the ordinary course of business, including
letters of credit, for sums not yet delinquent or being contested in good
faith, if such reserve or other appropriate provision, if any, as shall be required
by GAAP shall have been made in respect thereof; provided
that in the case of any such Lien against any of the Collateral, such Lien and
the contest thereof shall satisfy the Contested Collateral Lien Conditions;


 


(3)           Liens incurred on deposits made in the ordinary
course of business in connection with workers’ compensation, unemployment
insurance and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, performance bonds,
bids, trade contracts, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money);


 


26

















 


(4)           Liens upon specific items of inventory or other
goods and proceeds of any Person securing such Person’s obligations in respect
of bankers’ acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other goods;


 


(5)           judgment Liens not giving rise to a Default so long
as such Liens are adequately bonded or if reserves thereof have otherwise been
accounted for and any appropriate legal proceedings which may have been duly
initiated for the review of such judgment have not been finally terminated or
the period within which the proceedings may be initiated has not expired; provided that in the case of any such Lien which has or may
become a Lien against any of the Collateral, such Lien and the contest thereof
shall satisfy the Contested Collateral Lien Conditions;


 


(6)           zoning regulations, easements, rights-of-way,
servitudes, statutory exceptions to title, restrictions and other similar
charges, restrictions or minor encumbrances as to the use of real property or
immaterial imperfections of title which in each case do not, individually or in
the aggregate, materially adversely affect the value of the property affected
thereby or impair in any material respect the use of such property in the
ordinary conduct of the business of the Company or any Restricted Subsidiary;


 


(7)           Liens securing reimbursement obligations with
respect to commercial letters of credit that encumber documents and other
assets relating to such letters of credit and products and proceeds thereof;


 


(8)           Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty requirements of the
Company or any Restricted Subsidiary, including rights of offset and setoff;


 


(9)           bankers’ Liens, rights of setoff and other similar
Liens existing solely with respect to cash and Cash Equivalents on deposit in
one or more accounts maintained by the Company or any Restricted Subsidiary, in
each case granted in the ordinary course of business in favor of the bank or
banks with which such accounts are maintained, securing amounts owing to such
bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements; provided that in no case shall any such Liens secure (either
directly or indirectly) the repayment of any Indebtedness;


 


(10)         leases or subleases granted to others that do not
materially interfere with the ordinary course of business of the Company or any
Restricted Subsidiary and do not secure Indebtedness;


 


(11)         Liens arising from filing Uniform Commercial Code or
PPSA financing statements regarding leases;


 


(12)         Liens securing First Lien Obligations;


 


27

















 


(13)         Liens on property and assets not included in the
Collateral securing Hedging Obligations entered into for bona
fide hedging purposes of the Company or
any Restricted Subsidiary not for the purpose of speculation;


 


(14)         Liens on Liquidity Collateral securing Liquidity
Facility Obligations and Shared Collateral;


 


(15)         Liens in favor of an Issuer or a Guarantor;


 


(16)         Liens on property and assets not included in the
Collateral securing Indebtedness and other obligations, including Hedging
Obligations, and cash management or banking product obligations under or
permitted by Liquidity Facilities incurred pursuant to Section 4.09(b)(1);


 


(17)         Liens securing Purchase Money Indebtedness and
Capitalized Lease Obligations; provided that
such Liens shall not extend to any asset other than the specified asset being
financed and additions and improvements thereon;


 


(18)         Liens securing Acquired Indebtedness permitted to be
incurred under this Indenture; provided that
the Liens do not extend to assets not subject to such Lien at the time of
acquisition (other than improvements thereon) and are no more favorable to the
lienholders than those securing such Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary;


 


(19)         Liens on assets of a Person existing at the time
such Person is acquired or merged with or into or amalgamated or consolidated
with the Company or any Restricted Subsidiary (and not created in anticipation
or contemplation thereof); provided that
such Liens may not extend to assets other than those of the Person merged with
or into or amalgamated or consolidated with the Company or any Restricted
Subsidiary;


 


(20)         Liens to secure Refinancing Indebtedness of
Indebtedness secured by Liens referred to in the foregoing clauses (12), (14),
(17), (18) and (19); provided that
in the case of Liens securing Refinancing Indebtedness of Indebtedness secured
by Liens referred to in the foregoing clauses (14), (17), (18) and (19), such
Liens do not extend to any additional assets (other than improvements thereon
and replacements thereof);


 


(21)         Liens to secure Attributable Indebtedness and/or
that are incurred pursuant to Section 4.21; provided
that any such Lien shall not extend to or cover any assets of the Company or
any Restricted Subsidiary other than the assets which are the subject of the
Sale and Leaseback Transaction in which the Attributable Indebtedness is
incurred;


 


(22)         Liens securing Indebtedness or other obligations of
a Restricted Subsidiary owing to the Company or another Restricted Subsidiary
permitted to be incurred in accordance with Section 4.09;


 


(23)         Liens on property (including Equity Interests)
existing at the time of acquisition of the property by the Company or any
Restricted Subsidiary of the Company; 


 


28

















 


provided that such
Liens were in existence prior to such acquisition, and not incurred in
contemplation of such acquisition;


 


(24)         deposits made in the ordinary course of business to
secure liability to insurance carriers;


 


(25)         Liens in favor of customs and revenue authorities arising
as a matter of law to secure payment of customs duties in connection with the
importation of goods;


 


(26)         Liens on assets incurred in the ordinary course of
business of the Company or any Restricted Subsidiary with respect to
obligations (other than Indebtedness) that do not in the aggregate exceed $10.0
million at any one time outstanding;


 


(27)         Liens incurred in the ordinary course of business
and not securing any Indebtedness in favor of any public utility when required
by such public utility in connection with the operations of any property or
assets of the Company or any Restricted Subsidiary;


 


(28)         [reserved];


 


(29)         Liens on assets of the Company or a Securitization
Subsidiary incurred in connection with a Qualified Securitization Transaction;


 


(30)         Liens incurred in the ordinary course of business
and not securing any Indebtedness in respect of the rights of any shipper
(including the rights of such shipper to any petroleum substances owned by such
shipper but that are located on or within any property or assets of the Company
or any Restricted Subsidiary);


 


(31)         Operating leases having a term of over one year; and


 


(32)         Any right, title or interest of (i) the
landlord under any lease pursuant to which the Company or any Restricted
Subsidiary holds the leasehold interest in any property or asset or (ii) the
grantee under any right-of-way permitted by clause (6) of this definition
with respect to which the Company or any Restricted Subsidiary constitutes the
grantor thereunder, and in each of the cases described in clauses (i) and (ii) of
this clause (32), any Liens placed by such landlord or grantee solely on its
interest in the property or assets subject to such lease or right-of-way.


 


“Permitted Payments to
Parent” means payments (directly or in the form of dividends, loans
or otherwise) to a direct or indirect parent entity of the Company in amounts required
for such Person to pay:


 


(1)           franchise taxes and other fees, taxes and expenses
required to maintain its corporate existence, provided
that if, in any taxable period, the direct or indirect parent is engaged in any
material business activity or owns any material asset other than its direct or
indirect interest in the Company, any such payments for such taxable period
shall be limited to the portion of the franchise taxes, fees and expenses
allocable to the direct or 


 


29

















 


indirect interest in the
Company (as determined in good faith by the direct or indirect parent entity
involved);


 


(2)           for so long as the Company is a member of a group
filing a consolidated or combined tax return such direct or indirect parent
entity, an allocable portion of the tax liabilities of such group that is
attributable to the Company and its Subsidiaries;


 


(3)           payments to the Sponsor and any of its Affiliates
pursuant to the Management Agreement not to exceed $1.0 million in any calendar
year; and


 


(4)           payments (directly or in the form of dividends,
loans or otherwise) to a direct or indirect parent entity of the Company in
amounts required for such Person to pay general corporate overhead expenses for
such direct or indirect parent entity of the Company to the extent such
expenses are attributable to the ownership or operation of the Company and its
Restricted Subsidiaries not to exceed $400,000 in any calendar year.


 


“Person” means
any individual, corporation, partnership, limited liability company, unlimited
liability corporation, joint venture, incorporated or unincorporated
association, joint-stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.


 


“Plan of Liquidation”
with respect to any Person, means a plan that provides for, contemplates or the
effectuation of which is preceded or accompanied by (whether or not substantially
contemporaneously, in phases or otherwise): 
(1) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or
substantially all of the proceeds of such sale, lease, conveyance or other
disposition of all or substantially all of the remaining assets of such Person
to holders of Equity Interests of such Person.


 


“PPSA” means the
Personal Property Security Act (Alberta)
and other personal property security legislation of the Canadian province or
provinces and the Canadian territory or territories relevant to the Issuers and
the Restricted Subsidiaries or the Collateral (including the Civil Code of the
Province of Quebec and the regulation respecting the register of personal and
movable real rights promulgated thereunder) as all such legislation now exists
or may from time to time hereafter be amended, modified, recodified, supplemented
or replaced, together with all rules, regulations and interpretations
thereunder or related thereto.


 


“Preferred Stock”
means, with respect to any Person, any and all preferred or preference stock or
other equity interests (however designated) of such Person whether now outstanding
or issued after the Issue Date.


 


“principal”
means, with respect to the Notes, the principal of, and premium, if any, on the
Notes.


 


“Private Placement Legend”
means the legend set forth in Section 2.06(g)(1) hereof to be placed
on all Notes issued under this Indenture except where otherwise permitted by
the provisions of this Indenture.


 


30

















 


“Public Equity Offering”
means an underwritten public offering of Qualified Equity Interests of Parent
generating gross proceeds of at least $50.0 million in the aggregate since the
Issue Date, pursuant to an effective registration statement filed under the
Securities Act.


 


“Purchase Money
Indebtedness” means Indebtedness, including Capitalized Lease Obligations,
of the Company or any Restricted Subsidiary incurred for the purpose of financing
all or any part of the purchase price of property, plant or equipment used in
the business of the Company or any Restricted Subsidiary or the cost of
installation, construction or improvement thereof; provided,
however, that (1) the amount of
such Indebtedness shall not exceed such purchase price or cost and (2) such
Indebtedness shall be incurred within 90 days after such acquisition of such
asset by the Company or such Restricted Subsidiary or such installation,
construction or improvement.


 


“QIB” means a “qualified
institutional buyer” as defined in Rule 144A.


 


“Qualified Equity Interests”
of any Person means Equity Interests of such Person other than Disqualified
Equity Interests; provided that such Equity Interests shall not be deemed Qualified
Equity Interests to the extent sold or owed to a Subsidiary of such Person or
financed, directly or indirectly, using funds (1) borrowed from such
Person or any Subsidiary of such Person until and to the extent such borrowing
is repaid or (2) contributed, extended, guaranteed or advanced by such
Person or any Subsidiary of such Person (including, without limitation, in respect
of any employee stock ownership or benefit plan).  Unless otherwise specified, Qualified Equity
Interests refer to Qualified Equity Interests of the Company.


 


“Qualified Equity Offering”
means the issuance and sale of Qualified Equity Interests of Parent or the
Company to Persons.


 


“Qualified Securitization
Transaction” means any transaction or series of transactions entered
into by the Company or any of its Subsidiaries pursuant to which the Company or
any of its Subsidiaries sells, conveys or otherwise transfers to (i) a
Securitization Subsidiary (in the case of a transfer by the Company or any of
its Subsidiaries) and (ii) any other Person (in the case of a transfer by
a Securitization Subsidiary), or grants a security interest in, any Liquidity
Collateral (whether now existing or arising in the future) of the Company or
any of its Subsidiaries.


 


“redeem” means
to redeem, repurchase, purchase, defease, retire, discharge or otherwise
acquire or retire for value; and “redemption”
shall have a correlative meaning; provided that
this definition shall not apply for purposes of Section 3.07 and paragraph
5 of the Note.


 


“Redesignation”
has the meaning given to such term in Section 4.18.


 


“refinance”
means to refinance, repay, prepay, replace, renew or refund.


 


“Refinancing Indebtedness”
means Indebtedness of the Company or a Restricted Subsidiary incurred in
exchange for, or the proceeds of which are used to redeem or refinance in whole
or in part, any Indebtedness of the Company or any Restricted Subsidiary (the “Refinanced Indebtedness”); provided
that:


 


31

















 


(1)           the principal amount (and accreted value, in the
case of Indebtedness issued at a discount) of the Refinancing Indebtedness does
not exceed the principal amount (and accreted value, as the case may be) of the
Refinanced Indebtedness plus the amount of accrued and unpaid interest on the
Refinanced Indebtedness, any reasonable premium paid to the holders of the
Refinanced Indebtedness and reasonable expenses and fees incurred in connection
with the incurrence of the Refinancing Indebtedness;


 


(2)           the obligor of Refinancing Indebtedness does not
include any Person (other than an Issuer or any Guarantor) that would not have
otherwise been required to be an obligor of the Refinanced Indebtedness;


 


(3)           if the Refinanced Indebtedness was subordinated in
right of payment to the Notes or the Note Guarantees, as the case may be, then
such Refinancing Indebtedness, by its terms, is subordinate in right of payment
to the Notes or the Note Guarantees, as the case may be, at least to the same
extent as the Refinanced Indebtedness;


 


(4)           the Refinancing Indebtedness has a final Stated
Maturity either (a) no earlier than the Refinanced Indebtedness being
repaid or amended or (b) after the maturity date of the Notes;


 


(5)           the portion, if any, of the Refinancing Indebtedness
that is scheduled to mature on or prior to the maturity date of the Notes has a
Weighted Average Life to Maturity at the time such Refinancing Indebtedness is
incurred that is equal to or greater than the Weighted Average Life to Maturity
of the portion of the Refinanced Indebtedness being repaid that is scheduled to
mature on or prior to the maturity date of the Notes; and


 


(6)           the proceeds of the Refinancing Indebtedness shall
be used substantially concurrently with the incurrence thereof to redeem or
refinance the Refinanced Indebtedness, unless the Refinanced Indebtedness is
not then due and is not redeemable or prepayable at the option of the obligor
thereof or is redeemable or prepayable only with notice, in which case such
proceeds shall be held in a segregated account of the obligor of the Refinanced
Indebtedness until the Refinanced Indebtedness becomes due or redeemable or
prepayable or such notice period lapses and then shall be used to refinance the
Refinanced Indebtedness; provided that
in any event the Refinanced Indebtedness shall be redeemed or refinanced within
one year of the incurrence of the Refinancing Indebtedness.


 


“Registration Rights
Agreement” means (i) the Registration Rights Agreement dated as
of the Issue Date among the Issuers, the Guarantors and UBS Securities LLC, RBC
Capital Markets Corporation and RBS Securities Inc. and (ii) any other
registration rights agreement entered into in connection with an issuance of Additional
Notes in a private offering after the Issue Date.


 


“Regulation S”
means Regulation S promulgated under the Securities Act.


 


32

















 


“Regulation S Global Note”
means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or
on behalf of and registered in the name of the Depositary or its nominee.


 


“Requisite Percentage”
means, as calculated as of (i) 90 days after the Issue Date and (ii) each
June 30 and December 31 thereafter, 80% of the Fair Market Value of
the Rolling Stock owned by the Company and the Subsidiary Guarantor and
included in the Collateral.


 


“Responsible Officer”
when used with respect to the Trustee, means any officer assigned to the
Corporate Trust Division - Global Finance Americas unit of the Trustee (or any
successor group of the Trustee), located at the Corporate Trust Office of the
Trustee, who shall have direct responsibility for the administration of this
Indenture and, for purposes of Section 7.01(c)(2) and the second
sentence of Section 7.05 hereof also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.


 


“Restricted Definitive Note”
means a Definitive Note bearing the Private Placement Legend.


 


“Restricted Global Note”
means a Note in the form of a Global Note bearing the Private Placement Legend.


 


“Restricted Payment”
means any of the following:


 


(1)           the declaration or payment of any dividend or any
other distribution on Equity Interests of the Company or any Restricted
Subsidiary or any payment made to the direct or indirect holders (in their
capacities as such) of Equity Interests of the Company or any Restricted
Subsidiary, including, without limitation, any payment in connection with any
merger or consolidation involving the Company but excluding (a) dividends
or distributions payable solely in Qualified Equity Interests or through
accretion or accumulation of such dividends on such Equity Interests and (b) in
the case of Restricted Subsidiaries, dividends or distributions payable to the
Company or to a Restricted Subsidiary and pro  rata dividends or distributions payable to minority stockholders
of any Restricted Subsidiary;


 


(2)           the redemption of any Equity Interests of the
Company or any Restricted Subsidiary, including, without limitation, any
payment in connection with any merger or consolidation involving the Company
but excluding any such Equity Interests held by the Company or any Restricted
Subsidiary;


 


(3)           any Investment other than a Permitted Investment; or


 


(4)           any principal payment or redemption prior to the
scheduled maturity or prior to any scheduled repayment of principal or sinking
fund payment, as the case may be, in respect of Subordinated Indebtedness
(other than any Subordinated Indebtedness owed to and held by the Company or
any Restricted Subsidiary).


 


33














 


“Restricted Payments Basket”
has the meaning given to such term in Section 4.07(a)(3).


 


“Restricted Period”
means the 40-day distribution compliance period as defined in Regulation S.


 


“Restricted Subsidiary”
means any Subsidiary of the Company other than an Unrestricted Subsidiary.


 


“Rolling Stock”
means:  (i) with respect to
Collateral in which the validity and perfection of security interests in such
Collateral are governed by the laws of the Province of Alberta, serial number
goods within the meaning of the PPSA of such province; (ii) with respect
to Collateral in which the validity and perfection of security interests in
such Collateral are governed by the laws of the Provinces of British Columbia,
Manitoba, New Brunswick, Nova Scotia, Newfoundland, Saskatchewan and Prince
Edward Island, serial numbered goods within the meaning of the PPSA of each
such province; (iii) with respect to Collateral in which the validity and
perfection of security interests in such Collateral are governed by the laws of
the Province of Ontario, motor vehicles within the meaning of the PPSA of such
province; (iv) with respect to Collateral in which the validity and
perfection of security interests in such Collateral are governed by the laws of
any other jurisdiction in Canada or with respect to any amendments to the
definition of Rolling Stock in the PPSA of any jurisdiction in Canada, the term
under the PPSA of that jurisdiction which is the functional equivalent to “serial
number goods” within the meaning of the PPSA of Alberta; and (v) with
respect to Collateral in which the validity and perfection of security
interests in such Collateral are governed by the laws of the United States, vehicles
and other goods covered by a “certificate of title” within the meaning of the
Uniform Commercial Code.


 


“Rule 144”
means Rule 144 promulgated under the Securities Act.


 


“Rule 144A”
means Rule 144A promulgated under the Securities Act.


 


“Rule 903”
means Rule 903 promulgated under the Securities Act.


 


“Rule 904”
means Rule 904 promulgated under the Securities Act.


 


“S&P” means
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.,
and its successors.


 


“Sale and Leaseback
Transactions” means with respect to any Person an arrangement with
any bank, insurance company or other lender or investor or to which such lender
or investor is a party, providing for the leasing by such Person of any asset
of such Person which has been or is being sold or transferred by such Person to
such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such asset.


 


“Sale and Purchase
Agreement” means the Sale and Purchase Agreement by and among
Hunting plc, Hunting Energy Holdings Limited and Gibson Acquisition ULC dated August 5,
2008, as in effect on December 12, 2008.


 


“SEC” means the
U.S. Securities and Exchange Commission.


 


34

















 


“Secretary’s Certificate”
means a certificate signed by the Secretary of the Issuer.


 


“Securities Act”
means the U.S. Securities Act of 1933, as amended.


 


“Securitization Subsidiary”
means a Subsidiary of the Company that engages in no activities other than in
connection with financings secured by Liquidity Collateral and that is designated
by the Board of Directors of the Company (as provided below) as a
Securitization Subsidiary (a) no portion of the Indebtedness or any other
Obligations (contingent or otherwise) of which directly subjects any Collateral
to the satisfaction thereof, (b) with which neither the Company nor any
Restricted Subsidiary has any material contract, agreement or arrangement other
than on terms 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, other than fees payable in the ordinary course of
business in connection with servicing the Liquidity Collateral securing such
financing and (c) with which neither the Company nor any Restricted
Subsidiary has any obligation to maintain or preserve such Subsidiary’s
financial condition or cause such Subsidiary to achieve certain levels of
operating results. Any such designation by the Board of Directors of the
Company will be evidenced to the Trustee by filing with the Trustee a certified
copy of the resolution of the Board of Directors of the Company giving effect
to such designation and an Officer’s Certificate certifying that such
designation complied with the foregoing conditions.


 


“Security Agreement
Collateral” means all property pledged or subject to a security interest
granted pursuant to a Collateral Document (a) on the Issue Date or (b) thereafter
pursuant to Section 4.23.


 


“Security Agreements”
means collectively, (x) the Parent and Issuers Security Agreement, (y) the
Subsidiary Guarantors Security Agreement and (z) any other security agreement
made by any of the Issuers or the Guarantors to and in favor of the Collateral
Agent in connection with this Indenture or any Collateral Document.


 


“Serial Number” means (i) with
respect to Rolling Stock  in which the
validity and perfection of security interests in such Collateral are governed
by the laws of the Province of Ontario, the vehicle identification number of
such goods within the meaning of the PPSA of such province, (ii) with
respect to Rolling Stock  in which the
validity and perfection of security interests in such Collateral are governed
by the laws of the Provinces of Alberta, British Columbia, Manitoba, New
Brunswick, Nova Scotia, Newfoundland, Saskatchewan and Prince Edward Island,
the serial number of such goods within the meaning of the meaning of the PPSA
of such province, and (iii) with respect to Rolling Stock  in which the validity and perfection of
security interests in such Collateral are governed by the laws of any other
jurisdiction in Canada or with respect to any amendments to the definition of
Serial Number in the PPSA of any jurisdiction in Canada, the term under the
PPSA of that jurisdiction which is the functional equivalent to “serial
number” within the meaning of the PPSA of Alberta.


 


“Shared Collateral”
means all books, records, ledger cards, data processing records and cards,
proprietary and non-public business information, all proprietary rights in
computer software and programs and all documentation and other materials
related to computer software and 


 


35

















 


programs and all other
rights under any of the foregoing, business records data, databases, customer
lists, papers and writings, computer software and related systems.


 


“Shelf Registration
Statement” means the Shelf Registration Statement as defined in the
Registration Rights Agreement.


 


“Significant Subsidiary”
means (1) any Restricted Subsidiary that would be a “significant subsidiary”
as defined in Regulation S-X promulgated pursuant to the Securities Act as such
Regulation is in effect on the Issue Date and (2) any Restricted
Subsidiary that, when aggregated with all other Restricted Subsidiaries that
are not otherwise Significant Subsidiaries and as to which any event described
in Section 6.01(7) or (8) has occurred and is continuing, or
which are being released from their Note Guarantees (in the case of Section 9.02(9)),
would constitute a Significant Subsidiary under clause (1) of this
definition.


 


“Sponsor” means
Riverstone Holdings LLC.


 


“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 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.


 


“Stockholders’ Agreement”
means the stockholders’ agreement dated as of December 12, 2008 among
Parent and its stockholders.


 


“Subordinated Indebtedness”
means Indebtedness of an Issuer or any Subsidiary Guarantor that is expressly
subordinated in right of payment to the Notes or the Note Guarantees, respectively; provided, however, that
no Indebtedness will be deemed to be subordinated in right of payment to any
other Indebtedness of an Issuer or any Subsidiary Guarantor solely by virtue of
being unsecured or secured by a junior priority lien or by virtue of the fact
that the holders of such Indebtedness have entered into intercreditor
agreements or other arrangements giving one or more of such holders priority
over the other holders in the collateral held by them.


 


“Subsidiary”
means, with respect to any Person:


 


(1)           any corporation, limited liability company,
unlimited liability corporation, association or other business entity of which
more than 50% of the total voting power of the Equity Interests entitled
(without regard to the occurrence of any contingency) to vote in the election
of the Board of Directors thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other Subsidiaries of such
Person (or a combination thereof); and


 


(2)           any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one
or more Subsidiaries of such Person (or any combination thereof).


 


36

















 


Unless otherwise specified, “Subsidiary”
refers to a Subsidiary of the Company.


 


“Subsidiary Guarantor”
means any Guarantor other than Parent.


 


“Subsidiary Guarantors
Security Agreement” means the security agreement, dated as of the
Issue Date, by and among the Subsidiary Guarantors and the Collateral Agent, as
the same may be amended, amended and restated or otherwise supplemented in accordance
with the terms hereof and thereof.


 


“Tax” means any
tax, duty, levy, impost, assessment or other governmental charge (including
penalties, additions to tax, interest and any other liabilities related
thereto).


 


“Taxing Authority”
means any government or political subdivision or territory or possession of any
government or any authority or agency therein or thereof having power to tax.


 


“TIA” means the
Trust Indenture Act of 1939, as amended.


 


“Transactions”
has the meaning assigned to such term under the caption “Offering Memorandum
Summary” in the Offering Memorandum.


 


“Trustee” means
the Person named as the “Trustee” in the first paragraph of this instrument
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.


 


“Unrestricted Definitive
Note” means a Definitive Note that does not bear and is not required
to bear the Private Placement Legend.


 


“Unrestricted Global Note”
means a Note in the form of a Global Note that does not bear and is not
required to bear the Private Placement Legend.


 


“Unrestricted Subsidiary”
means (1) any Subsidiary that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors of the Company
in accordance with Section 4.18, (2) 1370307 Alberta Ltd. and (3) any
Subsidiary of an Unrestricted Subsidiary.


 


“U.S. Government
Obligations” means direct non-callable obligations of, or 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.


 


“U.S. Guarantors”
means (x) Gibson Energy (U.S.) Inc., a Delaware corporation, and Link
Petroleum, Inc., a Washington corporation, and (y) any other U.S.
Subsidiary that becomes a party to this Indenture through the execution of a
supplemental indenture in the form attached hereto as Exhibit F.


 


“U.S. Person”
means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.


 


37

















 


“U.S. Subsidiary”
means any Subsidiary incorporated in any political subdivision of the United
States government.


 


“Voting Stock”
with respect to any Person, means securities of any class of Equity Interests
of such Person entitling the holders thereof (whether at all times or only so
long as no senior class of stock or other relevant equity interest has voting
power by reason of any contingency) to vote in the election of members of the
Board of Directors of such Person.


 


“Weighted Average Life to
Maturity” when applied to any Indebtedness at any date, means 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 payment of principal, including payment
at final maturity, in respect thereof 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.


 


“Wholly Owned Restricted
Subsidiary” means a Restricted Subsidiary of which 100% of the Equity
Interests (except for directors’ qualifying shares or certain minority
interests owned by other Persons solely due to local law requirements that
there be more than one stockholder, but which interest is not in excess of what
is required for such purpose) are owned directly by the Company or through one
or more Wholly Owned Restricted Subsidiaries.


 


Section 1.02.          Other Definitions.


 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Additional Amounts”

  	
   

  	
  4.25

  	
   

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  	
   

  
	
  “Asset Sale Offer”

  	
   

  	
  3.08

  	
   

  
	
  “Authentication Order”

  	
   

  	
  2.02

  	
   

  
	
  “Change in Tax Law”

  	
   

  	
  3.07

  	
   

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control
  Payment”

  	
   

  	
  4.15

  	
   

  
	
  “Change of Control
  Payment Date”

  	
   

  	
  4.15

  	
   

  
	
  “Covenant Defeasance”

  	
   

  	
  13.03

  	
   

  
	
  “Coverage Ratio Exception”

  	
   

  	
  4.09

  	
   

  
	
  “Designation”

  	
   

  	
  4.18

  	
   

  
	
  “Designation Amount”

  	
   

  	
  4.18

  	
   

  
	
  “DTC”

  	
   

  	
  2.03

  	
   

  
	
  “Event of Default”

  	
   

  	
  6.01

  	
   

  
	
  “Event of Loss Offer”

  	
   

  	
  4.19

  	
   

  
	
  “Excess Loss Proceeds”

  	
   

  	
  4.19

  	
   

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  	
   

  
	
  “Indemnitee”

  	
   

  	
  7.07 (b)

  	
   

  
	
  “Interest Payment Date”

  	
   

  	
  Exhibit A

  	
   

  
	
  “Legal Defeasance”

  	
   

  	
  13.02

  	
   

  
	
  “Net Proceeds Deficiency”

  	
   

  	
  4.10

  	
   

  



 


38

















 


	
  Term

  	
   

  	
  Defined in

  Section

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “Offer Amount”

  	
   

  	
  3.08

  	
   

  
	
  “Offer Period”

  	
   

  	
  3.08

  	
   

  
	
  “Other Offered Price”

  	
   

  	
  4.10

  	
   

  
	
  “Parent Successor”

  	
   

  	
  5.01

  	
   

  
	
  “Paying Agent”

  	
   

  	
  2.03

  	
   

  
	
  “Payment Amount”

  	
   

  	
  4.10

  	
   

  
	
  “Permitted Indebtedness”

  	
   

  	
  4.09

  	
   

  
	
  “Purchase Date”

  	
   

  	
  3.08

  	
   

  
	
  “Redesignation”

  	
   

  	
  4.18

  	
   

  
	
  “Registrar”

  	
   

  	
  2.03

  	
   

  
	
  “Relevant Taxing
  Jurisdiction”

  	
   

  	
  4.25

  	
   

  
	
  “Successor”

  	
   

  	
  5.01

  	
   

  
	
  “Successor Guarantor”

  	
   

  	
  5.01

  	
   

  



 


Section 1.03.          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.


 


The following TIA terms used in this Indenture have
the following meanings:


 


“indenture securities”
means the Notes;


 


“indenture security holder”
means a Holder of a Note;


 


“indenture to be qualified”
means this Indenture;


 


“indenture trustee”
or “institutional trustee” means the
Trustee; and


 


“obligor” on the
Notes and the Note Guarantees means the Issuers and the Guarantors,
respectively, and any successor obligor on the Notes and the Note Guarantees, respectively.


 


All other terms used 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 therein.


 


Section 1.04.          Rules of Construction.


 


Unless the context otherwise requires:


 


(1)           a term has the
meaning assigned to it;


 


(2)           references to “dollars”
or “$” in this Indenture and the exhibits hereto are references to United
States dollars;


 


39





















 


(3)           an accounting
term not otherwise defined has the meaning assigned to it in accordance with
GAAP;


 


(4)           “or” is not
exclusive;


 


(5)           words in the
singular include the plural, and in the plural include the singular;


 


(6)           “will” shall be
interpreted to express a command;


 


(7)           provisions
apply to successive events and transactions;


 


(8)           references to
sections of or rules under the Securities Act, the Exchange Act or the TIA
will be deemed to include substitute, replacement of successor sections or rules adopted
by the SEC from time to time;


 


(9)           the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and


 


(10)         references
herein to Sections, Articles and Exhibits are references to Sections, Articles
or Exhibits of this Indenture unless the context otherwise indicates.


 


ARTICLE 2

THE NOTES


 


Section 2.01.          Form and Dating.


 


(a)           General.  The Notes and the Trustee’s certificate of
authentication will be substantially in the form of Exhibit A hereto.  The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.  Each Note will be dated the date of its authentication.  The Notes shall be in initial denominations
of $2,000 and integral multiples of $1,000 in excess thereof.


 


The terms and provisions contained in the Notes will
constitute, and are hereby expressly made, a part of this Indenture and the
Issuers 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.


 


(b)           Global Notes.  Notes issued in global form will be
substantially in the form of Exhibit A 
hereto, including the Global Note Legend thereon and the “Schedule of
Exchanges of Interests in the Global Note” attached thereto.  Notes issued in definitive form will be
substantially in the form of Exhibit A hereto, but without the Global Note
Legend thereon and without the “Schedule of Exchanges of Interests in the
Global Note” attached thereto.  Each
Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may 


 


40





















 


from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions.  Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby will be made by the Trustee or the Global
Notes Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06
hereof.


 


Section 2.02.          Execution and Authentication.


 


At least one Officer must sign the Notes for each of
the Issuers by manual or facsimile signature.


 


If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note will
nevertheless be valid.


 


A Note will not be valid until authenticated by the
manual signature of the Trustee.  The
signature will be conclusive evidence that the Note has been authenticated
under this Indenture.


 


The Trustee will, upon receipt of a written order of
the Issuers signed by an Officer (an “Authentication Order”),
authenticate and deliver Notes for original issue that may be validly issued
under this Indenture, including any Additional Notes.  The Trustee may conclusively presume that any
Notes in respect of which it is requested in an Authentication Order to authenticate
and deliver will be validly issued under this Indenture.  The aggregate principal amount of Notes
outstanding at any time may not exceed the aggregate principal amount of Notes
authorized for issuance by the Issuers pursuant to one or more Authentication
Orders, except as provided in Section 2.07 hereof.


 


The Trustee may appoint an authenticating agent
acceptable to the Issuers to authenticate Notes.  An authenticating agent may authenticate
Notes whenever the Trustee may do so. 
Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. 
An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.


 


Section 2.03.          Registrar and Paying Agent.


 


The Issuers will maintain an office or agency where
Notes may be presented for registration of transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented
for payment (“Paying Agent”).  The Registrar will keep a register of the
Notes and of their transfer and exchange. 
The Issuers may appoint 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 notice to any Holder.  The Issuers will 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.  The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.


 


The Issuers initially appoint The Depository Trust
Company (“DTC”) to act as Depositary with respect
to the Global Notes.


 


41

















 


The Issuers initially appoint the Trustee to act as
the Registrar and Paying Agent and to act as Global Notes Custodian with
respect to the Global Notes.


 


Section 2.04.          Paying Agent to Hold Money in Trust.


 


The Issuers will require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust
for the benefit of Holders or the Trustee all money held by the Paying Agent
for the payment of principal, premium or Additional Interest, if any, or
interest on the Notes, and will notify the Trustee of any default by the
Issuers in making any such payment. 
While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee. 
The Issuers at any time may require a Paying Agent to pay all money held
by it to the Trustee.  Upon payment over
to the Trustee, the Paying Agent (if other than the Issuers or a Subsidiary of
the Company) will have no further liability for the money.  If the Issuers or a Subsidiary of the Company
acts as Paying Agent, it will segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization
proceedings relating to the Issuers, the Trustee will serve as Paying Agent for
the Notes.


 


Section 2.05.          Holder Lists.


 


The Trustee will preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA § 312(a).  If the Trustee is not the Registrar, the
Issuers will furnish to the Trustee at least seven 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 the Holders of Notes and the Issuers
shall otherwise comply with TIA § 312(a).


 


Section 2.06.          Transfer and Exchange.


 


(a)           Transfer and Exchange of Global
Notes.  A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. 
All Global Notes will be exchanged by the Company for Definitive Notes
if:


 


(1)           the Company
delivers to the Trustee written notice from the Depositary that it is no longer
willing or able to act as Depositary and the Company is unable to locate a
qualified successor within 90 days after the date of such notice from the Depositary;
or


 


(2)           the Company, at
its option, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Notes; or


 


(3)           there has
occurred and is continuing a Default with respect to the Notes and any Holder
so requests.


 


42

















 


Upon the occurrence of either of the preceding
events in (1), (2) or (3) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee.  Global Notes also may be exchanged or
replaced, in whole or in part, as provided in Sections 2.07 and 2.10
hereof.  Every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion thereof,
pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof, shall
be authenticated and delivered in the form of, and shall be, a Global
Note.  A Global Note may not be exchanged
for another Note other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.


 


(b)           Transfer and Exchange of
Beneficial Interests in the Global Notes.  The transfer and exchange of beneficial
interests in the Global Notes will be effected through the Depositary, in
accordance with the provisions of this Indenture and the Applicable
Procedures.  Beneficial interests in the
Restricted Global Notes will be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.  Transfers of beneficial interests in the
Global Notes also will require compliance with either subparagraph (1) or (2) below,
as applicable, as well as one or more of the other following subparagraphs, as
applicable:


 


(1)           Transfer
of Beneficial Interests in the Same Global Note.  Beneficial interests in any Restricted Global
Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided,
however, that prior to the expiration of
the Restricted Period, transfers of beneficial interests in the Regulation S
Global Note may not be made to a U.S. Person or for the account or benefit of a
U.S. Person (other than an Initial Purchaser). 
Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note.  No written orders
or instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(1).


 


(2)           All
Other Transfers and Exchanges of Beneficial Interests in Global Notes.  In connection with all transfers and exchanges
of beneficial interests that are not subject to Section 2.06(b)(1) above,
the transferor of such beneficial interest must deliver to the Registrar
either:


 


(A)          both:


 


(i)         a written order
from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged; and


 


(ii)        instructions
from the Depositary given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited with
such increase; or


 


43














 


(B)           both:


 


(i)         a written order from a
Participant or an Indirect Participant given to the Depositary in accordance
with the Applicable Procedures directing the Depositary to cause to be issued a
Definitive Note in an amount equal to the beneficial interest to be transferred
or exchanged; and


 


(ii)        instructions given by
the Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (1) above.


 


Upon consummation of an Exchange Offer by the
Company in accordance with Section 2.06(f) hereof, the requirements
of this Section 2.06(b)(2) shall be deemed to have been satisfied
upon receipt by the Company of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Notes.  Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global Notes
contained in this Indenture and the Notes or otherwise applicable under the
Securities Act (such satisfaction being deemed to have been conclusively
established upon receipt by the Trustee of the Authentication Order referred to
in Section 2.06(h) hereof with respect to such Notes), the Trustee
shall adjust the principal amount of the relevant Global Note(s) pursuant
to Section 2.06(h) hereof.


 


(3)           Transfer of
Beneficial Interests to Another Restricted Global Note.  A beneficial interest in any Restricted
Global Note may be transferred to a Person who takes delivery thereof in the
form of a beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(2) above and the
Registrar receives the following:


 


(A)          if the transferee
will take delivery in the form of a beneficial interest in the 144A Global
Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;


 


(B)           if the transferee
will take delivery in the form of a beneficial interest in the Regulation S
Global Note, then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (2) thereof; and


 


(C)           if the transferee
will take delivery in the form of a beneficial interest in the IAI Global Note,
then the transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications, certificates and Opinion of Counsel
required by item (3) thereof, if applicable.


 


(4)           Transfer and
Exchange of Beneficial Interests in a Restricted Global Note for Beneficial
Interests in an Unrestricted Global Note.  A beneficial interest in any Restricted
Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery
thereof in the 


 


44





















 


form
of a beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(2) above
and:


 


(A)          such exchange or
transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144)
of the Company;


 


(B)           such transfer is
effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;


 


(C)           such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or


 


(D)          the Registrar
receives the following:


 


(i)    if the holder of such
beneficial interest in a Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C hereto, including
the certifications in item (1)(a) thereof; or


 


(ii)   if the holder of such
beneficial interest in a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Note, a certificate from such
holder in the form of Exhibit B hereto, including the certifications in
item (4) thereof;


 


and, in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in a form reasonably acceptable to the Registrar to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.


 


If any such transfer is effected pursuant to
subparagraph (B) or (D) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuers shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee
shall authenticate one or more Unrestricted Global Notes in an aggregate
principal amount equal to the aggregate principal amount of beneficial
interests transferred pursuant to subparagraph (B) or (D) above.


 


Beneficial interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery thereof in
the form of, a beneficial interest in a Restricted Global Note.


 


45

















 


(c)           Transfer or Exchange of
Beneficial Interests for Definitive Notes.


 


(1)           Beneficial Interests in
Restricted Global Notes to Restricted Definitive Notes.  If any holder of a beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Registrar of written instructions from the Depositary, including
registration instructions and the following documentation:


 


(A)          if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (2)(a) thereof;


 


(B)           if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;


 


(C)           if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (2) thereof;


 


(D)          if such beneficial interest is being
transferred pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(a) thereof;


 


(E)           if such beneficial interest is being
transferred to an Institutional Accredited Investor in reliance on an exemption
from the registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the effect
set forth in Exhibit B hereto, including the certifications, certificates
and Opinion of Counsel required by item (3) thereof, if applicable;


 


(F)           if such beneficial interest is being
transferred to the Company or any of its Subsidiaries, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or


 


(G)           if such beneficial interest is being
transferred pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(c) thereof,


 


the
Trustee shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Issuers shall execute and the Trustee shall authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of
such beneficial 


 


46

















 


interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant.  The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered.  Any Definitive Note issued
in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c)(1) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.


 


(2)           Beneficial Interests in
Restricted Global Notes to Unrestricted Definitive Notes.  A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note only
if:


 


(A)          such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii) a
Person participating in the distribution of the Exchange Notes or (iii) a
Person who is an affiliate (as defined in Rule 144) of the Company;


 


(B)           such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the Registration Rights
Agreement;


 


(C)           such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or


 


(D)          the Registrar receives the following:


 


(i)       if the holder of such beneficial interest
in a Restricted Global Note proposes to exchange such beneficial interest for
an Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(b) thereof; or


 


(ii)      if the holder of such beneficial interest
in a Restricted Global Note proposes to transfer such beneficial interest to a
Person who shall take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in a form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


(3)           Beneficial Interests in
Unrestricted Global Notes to Unrestricted Definitive Notes.  If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a 


 


47





















 


Person who takes delivery thereof in the form
of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company will execute and the Trustee will authenticate and deliver to
the Person designated in the instructions a Definitive Note in the appropriate
principal amount.  Any Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will
be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest requests through
instructions to the Registrar from or through the Depositary and the
Participant or Indirect Participant.  The
Trustee will deliver such Definitive Notes to the Persons in whose names such
Notes are so registered.  Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will
not bear the Private Placement Legend.


 


(d)           Transfer and Exchange of
Definitive Notes for Beneficial Interests.


 


(1)           Restricted Definitive
Notes to Beneficial Interests in Restricted Global Notes.  If any Holder of a Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a Restricted Global
Note or to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note, then,
upon receipt by the Registrar of the following documentation:


 


(A)          if the Holder of such
Restricted Definitive Note proposes to exchange such Note for a beneficial
interest in a Restricted Global Note, a certificate from such Holder in the
form of Exhibit C hereto, including the certifications in item (2)(b) thereof;


 


(B)           if such Restricted
Definitive Note is being transferred to a QIB in accordance with Rule 144A,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;


 


(C)           if such Restricted
Definitive Note is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;


 


(D)          if such Restricted
Definitive Note is being transferred pursuant to an exemption from the
registration requirements of the Securities Act in accordance with Rule 144,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;


 


(E)           if such Restricted
Definitive Note is being transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of the Securities
Act other than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications, certificates and Opinion of Counsel required by item (3) thereof,
if applicable;


 


(F)           if such Restricted
Definitive Note is being transferred to the Company or any of its Subsidiaries,
a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(b) thereof; or


 


48





















 


(G)           if such Restricted
Definitive Note is being transferred pursuant to an effective registration
statement under the Securities Act, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(c) thereof,


 


the Trustee will, upon surrender of the
Restricted Definitive Note, cancel the Restricted Definitive Note, increase or
cause to be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, in the case of clause (C) above, the Regulation S
Global Note, and in all other cases, the IAI Global Note.


 


(2)           Restricted Definitive
Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of a Restricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Restricted Definitive Note to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note only if:


 


(A)          such exchange or
transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or
the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating
in the distribution of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


(B)           such transfer is
effected pursuant to the Shelf Registration Statement in accordance with the Registration
Rights Agreement;


 


(C)           such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights Agreement; or


 


(D)          the Registrar
receives the following:


 


(i)       if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the Unrestricted
Global Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(c) thereof; or


 


(ii)      if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in
the form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures
so require, an Opinion of Counsel in a form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.


 


49

















 


Upon satisfaction of the conditions of any of the
subparagraphs in this Section 2.06(d)(2) and surrender of the
Definitive Notes to the Trustee, the Trustee will cancel the Definitive Notes
and increase or cause to be increased the aggregate principal amount of the Unrestricted
Global Note.


 


(3)           Unrestricted Definitive
Notes to Beneficial Interests in Unrestricted Global Notes.  A Holder of an Unrestricted Definitive Note
may exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note at any time.  Upon receipt of a request for such an
exchange or transfer and surrender of such Unrestricted Definitive Note, the
Trustee will cancel the applicable Unrestricted Definitive Note and increase or
cause to be increased the aggregate principal amount of one of the Unrestricted
Global Notes.


 


If any such exchange or transfer from a Definitive
Note to a beneficial interest is effected pursuant to subparagraphs (2)(B), (2)(D) or
(3) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuers will issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee will authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.


 


(e)           Transfer and Exchange of
Definitive Notes for Definitive Notes.  Upon request by a Holder of Definitive Notes
and such Holder’s compliance with the provisions of this Section 2.06(e),
the Registrar will register the transfer or exchange of Definitive Notes.  Prior to such registration of transfer or
exchange, the requesting Holder must present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in a form satisfactory to the Registrar duly executed by such Holder
or by its attorney, duly authorized in writing. 
In addition, the requesting Holder must provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).


 


(1)           Restricted
Definitive Notes to Restricted Definitive Notes.  Any Restricted Definitive Note may be
transferred to and registered in the name of Persons who take delivery thereof
in the form of a Restricted Definitive Note if the Registrar receives the following:


 


(A)          if the transfer will
be made pursuant to Rule 144A, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications
in item (1) thereof;


 


(B)           if the transfer will
be made pursuant to Rule 903 or Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and


 


(C)           if the transfer will
be made pursuant to any other exemption from the registration requirements of
the Securities Act, then the transferor must deliver 


 


50





















 


a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable.


 


(2)           Restricted
Definitive Notes to Unrestricted Definitive Notes.  Any Restricted Definitive Note may be
exchanged by the Holder thereof for an Unrestricted Definitive Note or
transferred to a Person or Persons who take delivery thereof in the form of an
Unrestricted Definitive Note if:


 


(A)          such exchange or
transfer is effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person participating
in the distribution of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;


 


(B)           any such transfer is
effected pursuant to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;


 


(C)           any such transfer is
effected by a Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or


 


(D)          the Registrar
receives the following:


 


(i)         if the Holder of such
Restricted Definitive Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of Exhibit C
hereto, including the certifications in item (1)(d) thereof; or


 


(ii)        if the Holder of such
Restricted Definitive Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;


 


and, in each such case set forth in this
subparagraph (D), if the Registrar so requests, an Opinion of Counsel in a form
reasonably acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.


 


(3)           Unrestricted
Definitive Notes to Unrestricted Definitive Notes.  A Holder of Unrestricted Definitive Notes may
transfer such Notes to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note.  Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Notes pursuant to the instructions from the Holder
thereof.


 


51





















 


(f)            Exchange Offer.  Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company will issue and,
upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee will authenticate:


 


(1)           one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
the beneficial interests in the Restricted Global Notes accepted by the Issuers
for exchange in the Exchange Offer by Persons that certify in the applicable
Letters of Transmittal that (A) they are not Broker-Dealers, (B) they
are not participating in a distribution of the Exchange Notes and (C) they
are not affiliates (as defined in Rule 144) of the Company; and


 


(2)           Unrestricted
Definitive Notes in an aggregate principal amount equal to the principal amount
of the Restricted Definitive Notes accepted by the Issuers for exchange in the
Exchange Offer by Persons that certify in the applicable Letters of Transmittal
that (A) they are not Broker-Dealers, (B) they are not participating
in a distribution of the Exchange Notes and (C) they are not affiliates
(as defined in Rule 144) of the Company.


 


Concurrently with the issuance of such Notes, the
Trustee will cause the aggregate principal amount of the applicable Restricted
Global Notes to be reduced accordingly, and the Company will execute and the
Trustee will authenticate and deliver to the Persons designated by the Issuers
as the holders of Global Notes or Definitive Notes so accepted Unrestricted
Global Notes or Unrestricted Definitive Notes in the appropriate principal
amount.


 


Notes issued pursuant to this Section 2.06(f) shall
be a part of the same series of Notes as the Initial Notes.


 


(g)           Legends.  The following legends will appear on the face
of all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture:


 


(1)           Private
Placement Legend.


 


(A)          Except as permitted
by subparagraph (B) below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof) shall bear the
legend in substantially the following form:


 


“THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE. 
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:


 


52

















 


(1)           REPRESENTS
THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (“QIB”) AND IS AWARE THAT THE SALE TO IT IS BEING
MADE IN RELIANCE ON RULE 144A AND SUCH QIB IS ACQUIRING SUCH NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QIB; (B) IT IS NOT A U.S. PERSON (AS
DEFINED IN REGULATION S UNDER THE SECURITIES ACT, AND IS PURCHASING THE NOTES
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT; OR (C) IT IS AN
INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED INVESTOR”);


 


(2)           ACKNOWLEDGES
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A OR OTHER EXEMPTIONS FROM THE
SECURITIES ACT;


 


(3)           AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (B) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, (C) OUTSIDE
THE UNITED STATES TO A PERSON THAT IS NOT A U.S. PERSON (AS DEFINED IN
REGULATION S UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT IS PURCHASING AT LEAST $250,000 OF NOTES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR
(AND BASED UPON AN OPINION OF COUNSEL IF WE SO REQUEST) OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION UNDER THE SECURITIES ACT, (2) TO THE COMPANY,
FINANCE CORP. OR ANY OF THE COMPANY’S SUBSIDIARIES OR (3) UNDER AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN COMPLIANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION); AND


 


(4)           AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.


 


AS USED HEREIN, THE TERMS “UNITED STATES” AND
“U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER
THE SECURITIES ACT.  THE INDENTURE
GOVERNING THIS SECURITY CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE 


 


53

















 


TO REGISTER ANY TRANSFER OF
THIS SECURITY IN VIOLATION OF THE FOREGOING.”


 


(B)           Notwithstanding the
foregoing, any Global Note or Definitive Note issued pursuant to subparagraphs
(b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this
Section 2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.


 


(2)           Global Note
Legend.  Each Global Note will bear a
legend in substantially the following form:


 


“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY MAKE
SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF
THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT
IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11
OF THE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS 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 MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE 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.


 


UNLESS PERMITTED UNDER  CANADIAN SECURITIES LEGISLATION, THE HOLDER
OF THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE THE DATE THAT IS 4 MONTHS
AND A DAY AFTER THE LATER OF (I) THE 


 


54

















 


ISSUE DATE AND (II) THE
DATE THE ISSUER BECAME A REPORTING ISSUER IN ANY PROVINCE OR TERRITORY OF
CANADA.”


 


(h)           Cancellation and/or
Adjustment of Global Notes. 
At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note will be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof.  At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note will be reduced
accordingly and an endorsement will be made on such Global Note by the Trustee
or by the Depositary at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in
another Global Note, such other Global Note will be increased accordingly and
an endorsement will be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.


 


(i)            General Provisions
Relating to Transfers and Exchanges.


 


(1)                           To permit registrations of transfers and
exchanges, the Issuers will execute and the Trustee will authenticate Global
Notes and Definitive Notes upon receipt of an Authentication Order in accordance
with Section 2.02 hereof or at the Registrar’s request.


 


(2)                           No service charge will be made to a Holder
of a beneficial interest in a Global Note or to a Holder of a Definitive Note
for any registration of transfer or exchange, but the Issuers may require
payment of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchange or transfer pursuant to
Sections 2.10, 3.06, 3.08, 4.10, 4.15 and 9.05 hereof).


 


(3)                           The Registrar will not be required to
register the transfer of or exchange of any Note selected for redemption in
whole or in part, except the unredeemed portion of any Note being redeemed in
part.


 


(4)                           All Global Notes and Definitive Notes
issued upon any registration of transfer or exchange of Global Notes or
Definitive Notes will be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Notes or Definitive Notes surrendered upon such registration of transfer
or exchange.


 


(5)           Neither the
Registrar nor the Issuers will be required:


 


(A)          to issue, to register
the transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of business
on the day of selection;


 


55














 


(B)           to register the
transfer of or to exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part; or


 


(C)           to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.


 


(6)           Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Issuers may deem and treat
the Person in whose name any Note is registered as the absolute owner of such
Note for the purpose of receiving payment of principal of and interest on such
Notes and for all other purposes, and none of the Trustee, any Agent or the
Issuers shall be affected by notice to the contrary.


 


(7)           The Trustee will authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.


 


(8)           All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.


 


(9)           The Registrar shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Note (including any transfers between or among depositary
participants or beneficial owners of interests in any Global Note) other than
to require delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.


 


(j)            General Provisions
Relating to Global Notes. 
Owners of beneficial interests in the Notes evidenced by a Global Note
will not be entitled to any rights under this Indenture with respect to such
Global Note, and the Depositary or its nominee may be treated by the Issuers,
the Guarantors, and the Trustee and any agent of the Issuers, the Guarantor or
the Trustee, including any Agent, as the owner and Holder of such Global Note
for all purposes whatsoever.  None of the
Issuers, the Guarantors, the Trustee, any Agent or any other agent of the
Issuers, the Guarantors or of the Trustee shall have any responsibility or
liability for any aspect of the records relat-ing to or payments made on
account of beneficial ownership interests of a Global Note or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.  None of the Issuers, the
Guarantors, the Trustee, any Agent or any other agent of the Issuers, the
Guarantors or of the Trustee shall have any responsibility or liability to any
Person for any acts or omissions of the Depositary or its nominee in respect of
a Global Note, for the records of any such Depositary, including records in
respect of beneficial ownership interests in respect of such Global Note, for
any transactions between such Depositary and any Participant or indirect participant
in such Depositary or between or among such Depositary, any Participant or
indirect participant in such Depositary and/or any Holder or owner of a beneficial
interest in such Global Note, or for any transfers of beneficial interests in
any such Global Note.  Notwithstanding
the foregoing, nothing herein shall prevent the Issuers, the Guarantors, the
Trustee or any Agent or 


 


56

















 


such agent from giving effect to any written
certification, proxy or other authorization furnished by the Depositary or its
nominee or impair, as between the Depositary or its nominee and such owners of
beneficial interests, the operation of customary practices governing the
exercise of the rights of the Depositary or its nominee as Holder of any Global
Note.


 


Section 2.07.          Replacement Notes.


 


If any mutilated Note is surrendered to the Trustee
or the Issuers and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuers will issue and the Trustee,
upon receipt of an Authentication Order, will authenticate a replacement Note
if the Trustee’s requirements are met. 
If required by the Trustee or the Company, an indemnity bond must be
supplied by the Holder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced.  The Company may charge for its
expenses in replacing a Note.


 


Every replacement Note is an additional obligation
of the Company and will be entitled to all of the benefits of this Indenture
equally and proportionately with all other Notes duly issued hereunder.


 


Section 2.08.          Outstanding Notes.


 


The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. 
Except as set forth in Section 2.09 hereof, 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 2.07
hereof, it will be deemed outstanding only if the Trustee receives proof
satisfactory to it that the replaced Note is held by a protected purchaser
within the meaning of Section 8-303 of the New York Uniform Commercial
Code.


 


If the principal amount of any Note is considered
paid under Section 4.01 hereof, it ceases to be outstanding and interest
on it ceases to accrue.


 


If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Notes payable on that date, then on and
after that date such Notes will be deemed to be no longer outstanding and will
cease to accrue interest.


 


Section 2.09.          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 the Issuers or any Guarantor, or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuers or any Guarantor, will be considered as though not
outstanding, except 


 


57

















 


that for the purposes of
determining whether the Trustee will 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 will be so disregarded.


 


Section 2.10.          Temporary Notes.


 


Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, will authenticate temporary Notes.  Temporary Notes will be substantially in the
form of certificated Notes but may have variations that the Company considers
appropriate for temporary Notes and as may be reasonably acceptable to the
Trustee.  Without unreasonable delay, the
Company will prepare and the Trustee will authenticate definitive Notes in
exchange for temporary Notes.


 


Holders of temporary Notes will be entitled to all
of the benefits of this Indenture.


 


Section 2.11.          Cancellation.


 


The Company at any time may deliver Notes to the
Trustee for cancellation, which have been previously authenticated and
delivered hereunder and which an Issuer may have acquired in any manner
whatsoever.  The Registrar and Paying
Agent will forward to the Trustee any Notes surrendered to them for
registration of transfer, exchange or payment. 
The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and
will dispose of canceled Notes in accordance with its customary procedures
(subject to the record retention requirement of the Exchange Act).  Certification of the disposition of all canceled
Notes will be delivered to the Company. 
The Company may not issue new Notes to replace Notes that it has paid or
that have been delivered to the Trustee for cancellation, except as expressly
permitted by this Indenture.


 


Section 2.12.          Defaulted Interest.


 


If the Issuers default in a payment of interest on
the Notes, it will 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 4.01 hereof. 
The Issuers will notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the date of the proposed
payment.  The Issuers will fix or cause
to be fixed each such special record date and payment date; provided that no such special record date may 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) will 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.


 


58

















 


ARTICLE 3

REDEMPTION AND PREPAYMENT


 


Section 3.01.          Notices to Trustee.


 


If the Issuers elect to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it must furnish to
the Trustee, at least 35 days but not more than 60 days before a redemption
date (or such shorter period as may be agreed between the Company and the Trustee),
an Officer’s Certificate setting forth:


 


(1)           the clause of this
Indenture pursuant to which the redemption shall occur;


 


(2)           the redemption date;


 


(3)           the principal amount
of Notes to be redeemed; and


 


(4)           the redemption
price.


 


Section 3.02.          Selection of Notes to Be
Redeemed or Purchased.


 


If less than all of the Notes are to be redeemed or
purchased in an offer to purchase at any time, the Trustee will select Notes
for redemption or purchase pro rata, by lot or by such other method as the
Trustee shall deem fair and appropriate except:


 


(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 otherwise
required by law.


 


In the event of partial redemption or purchase by
lot, the particular Notes to be redeemed or purchased will be selected, unless
otherwise provided herein, not less than 30 nor more than 60 days prior to the
redemption or purchase date by the Trustee from the outstanding Notes not previously
called for redemption or purchase.


 


The Trustee will promptly notify the Issuers in
writing of the Notes selected for redemption or purchase and, in the case of
any Note selected for partial redemption or purchase, the principal amount
thereof to be redeemed or purchased. 
Notes and portions of Notes selected will be in amounts of $2,000 or
integral multiples of $1,000 in excess thereof; except that if all of the Notes
of a Holder are to be redeemed or purchased, the entire outstanding amount of
Notes held by such Holder, even if not in excess of $2,000 or an integral
multiple of $1,000 in excess thereof, shall be redeemed or purchased.  Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption or
purchase also apply to portions of Notes called for redemption or purchase.


 


59

















 


Section 3.03.          Notice of Redemption.


 


Subject to the provisions of Section 3.08
hereof, at least 30 days but not more than 60 days before a redemption date,
the Company will 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, 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 defeasance of
the Notes or a satisfaction and discharge of this Indenture pursuant to Article 8
or Article 11 hereof.


 


The notice will identify the Notes to be redeemed
(including the CUSIP, ISIN or other similar number) and will state:


 


(1)           the redemption date;


 


(2)           the redemption
price;


 


(3)           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 principal amount equal to the unredeemed portion will be
issued upon cancellation of the original Note;


 


(4)           the name and address
of the Paying Agent;


 


(5)           that Notes called
for redemption must be surrendered to the Paying Agent to collect the redemption
price;


 


(6)           that, unless the
Issuers default in making such redemption payment, interest on Notes called for
redemption ceases to accrue on and after the redemption date;


 


(7)           the paragraph of the
Notes and/or section of this Indenture pursuant to which the Notes called for
redemption are being redeemed; and


 


(8)           that no
representation is made as to the correctness or accuracy of the CUSIP, ISIN or
other similar number, if any, listed in such notice or printed on the Notes.


 


At the Company’s request, the Trustee will give the
notice of redemption in the Company’s name and at its expense; provided, however, that the
Company has delivered to the Trustee, at least 35 days prior to the redemption
date (or such shorter period as may be agreed between the Company and the
Trustee), an Officer’s Certificate requesting that the Trustee give such notice
and setting forth the information to be stated in such notice as provided in
the preceding paragraph.


 


Section 3.04.          Effect of Notice of
Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.03 hereof, Notes called for redemption become irrevocably
due and payable on the redemption date at the redemption price.  A notice of redemption may be conditional.


 


60

















 


Section 3.05.          Deposit of Redemption or
Purchase Price.


 


One Business Day prior to the redemption or purchase
date, the Issuers will deposit with the Trustee or with the Paying Agent money
sufficient to pay the redemption or purchase price of and accrued interest and
Additional Interest, if any, on all Notes to be redeemed or purchased on that
date.  The Trustee or the Paying Agent
will promptly return to the Issuers any money deposited with the Trustee or the
Paying Agent by the Issuers in excess of the amounts necessary to pay the
redemption or purchase price of, and accrued interest and Additional Interest,
if any, on, all Notes to be redeemed or purchased.


 


If the Issuers complies with the provisions of the
preceding paragraph, on and after the redemption or purchase date, interest
will cease to accrue on the Notes or the portions of Notes called for
redemption or purchase.  If a Note is
redeemed or purchased on or after an interest record date but on or prior to
the related interest payment date, then any accrued and unpaid interest shall
be paid to the Person in whose name such Note was registered at the close of
business on such record date.  If any
Note called for redemption or purchase is not so paid upon surrender for
redemption or purchase because of the failure of the Issuers to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption or purchase 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 4.01 hereof.


 


Section 3.06.          Notes Redeemed or
Purchased in Part.


 


Upon surrender and cancellation of a Note that is
redeemed or purchased in part, the Issuers will issue and, upon receipt of an
Authentication Order, the Trustee will authenticate for the Holder at the
expense of the Issuers a new Note in a principal amount equal to the unredeemed
or unpurchased portion of the Note surrendered and cancelled.


 


Section 3.07.          Optional Redemption.


 


(a)           [Reserved].


 


(b)           At any time or from time to time on or after June 1,
2012, the Issuers, at their option, may redeem the Notes, in whole or in part,
at the redemption prices (expressed as percentages of principal amount) set
forth below, together with accrued and unpaid interest thereon, if any, to the
redemption date, if redeemed during the 12-month period beginning June 1
of the years indicated:


 


	
  Year

  	
   

  	
  Optional

  redemption price

  	
   

  
	
  2012

  	
   

  	
  105.875

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100

  	
  %

  



 


Unless the Issuers default in the payment of the
redemption price, interest will cease to accrue on the Notes or portions thereof
called for redemption on the applicable redemption date.


 


(c)           At any time or from time to time prior to June 1,
2012, the Issuers, at their option, may redeem up to 35% of the aggregate
principal amount of the Notes issued under this Indenture


 


61





















 


with the net cash proceeds of one or more
Qualified Equity Offerings at a redemption price equal to 111.75% of the
principal amount of the Notes to be redeemed, plus accrued and unpaid interest
thereon, if any, to the date of redemption; provided
that (1) at least 65% of the aggregate principal amount of Notes issued
under this Indenture remains outstanding immediately after the occurrence of
such redemption and (2) the redemption occurs within 90 days of the date
of the closing of any such Qualified Equity Offering.


 


(d)           The Issuers may, at their option, redeem all (but not less
than all) of the Notes then outstanding, in each case at 100% of the principal
amount of the Notes, plus accrued and unpaid interest, if any, to the date of
redemption, if the Issuers have become, or the Issuers reasonably determine
that they would become, obligated to pay, on the next date on which any amount
would be payable with respect to the Notes, any Additional Amounts as a result
of change in law (including any change occurring pursuant to regulations
promulgated thereunder or treaties of any Relevant Taxing Jurisdiction) or
change in the interpretation or administration of law, regulation, ruling or
treaty (including a holding by a court of competent jurisdiction) (each such
change, a “Change in Tax Law”), if such Change in
Tax Law is announced and becomes effective on or after the Issue Date and the
Issuers reasonably determine that such obligation cannot be avoided by the use
of reasonable measures available to them (not including a substitution of the
Issuer).  Notice of any such redemption
must be given within 60 days of the earlier of the announcement and the
effectiveness of any such Change in Tax Law. Prior to the publication or mailing of any notice of redemption of the
Notes pursuant to the foregoing, the Issuers will deliver to the Trustee an
Officer’s Certificate stating that it is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to its
rights so to redeem have been satisfied.


 


(e)           Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Sections 3.01 through 3.06 hereof.


 


Section 3.08.          Offer to Purchase by
Application of Excess Proceeds or Excess Loss Proceeds.


 


(a)           In the event that, pursuant to Section 4.10 or Section 4.19,
as applicable, hereof, the Company is required to commence an offer to all
Holders to purchase Notes (an “Asset Sale Offer”)
or Event of Loss Offer, it will follow the procedures specified below.


 


(b)           The Asset Sale Offer or Event of Loss Offer, as
applicable, shall be made to all Holders and all holders of other Indebtedness
that is pari passu with the Notes containing provisions similar to those set
forth in this Indenture with respect to offers to purchase or redeem with the
proceeds of sales of assets.  The Asset
Sale Offer or Event of Loss Offer, as applicable, will remain open for a period
of at least 20 Business Days following its commencement and not more than 30
Business Days, except to the extent that a longer period is required by
applicable law (the “Offer Period”).  No later than three Business Days after the
termination of the Offer Period (the “Purchase Date”),
the Company will apply all other Excess Proceeds or Excess Loss Proceeds, as
applicable, (the “Offer Amount”) to the purchase of
Notes and such other pari  passu First Lien Obligations (on a pro
rata basis, if applicable) or, if less
than the Offer Amount has been tendered, all Notes and other Indebtedness
tendered in response to the Asset Sale Offer. 
Payment for any Notes so purchased will be made in the same manner as
interest payments are made.


 


62





















 


(c)           If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any accrued and unpaid
interest and Additional Interest, if any, will be paid to the Person in whose
name a Note is registered at the close of business on such record date, and no
additional interest will be payable to Holders who tender Notes pursuant to the
Asset Sale Offer.


 


(d)           Upon the commencement of an Asset Sale Offer or Event of
Loss Offer, as applicable, the Company will send, by first class mail, a notice
to the Trustee and each of the Holders. 
The notice will contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer or Event
of Loss Offer, as applicable.  The
notice, which will govern the terms of the Asset Sale Offer or Event of Loss
Offer, as applicable, will state:


 


(1)           that the Asset Sale
Offer or Event of Loss Offer, as applicable, is being made pursuant to this Section 3.08
and Section 4.10 or Section 4.19 hereof, as applicable, and the
length of time the Asset Sale Offer will remain open;


 


(2)           the Offer Amount,
the purchase price and the Purchase Date;


 


(3)           that any Note not
tendered or accepted for payment will continue to  accrue interest;


 


(4)           that, unless the
Company defaults in making such payment, any Note accepted for payment pursuant
to the Asset Sale Offer or Event of Loss Offer, as applicable, will cease to accrue
interest after the Purchase Date;


 


(5)           that Holders
electing to have a Note purchased pursuant to an Asset Sale Offer or Event of
Loss Offer, as applicable, may elect to have Notes purchased in denominations
of $2,000 and integral multiples of $1,000 in excess thereof only;


 


(6)           that Holders
electing to have Notes purchased pursuant to any Asset Sale Offer or Event of
Loss Offer, as applicable, will be required to surrender the Note, with the
form entitled “Option of Holder to Elect Purchase” attached to the Notes
completed, or transfer by book-entry transfer, to the Company, a Depositary, if
appointed by the Company, or a Paying Agent at the address specified in the
notice at least three days before the Purchase Date;


 


(7)           that Holders will be
entitled to withdraw their election if the Company, the Depositary or the
Paying Agent, as the case may be, receives, not later than the expiration of
the Offer Period, 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;


 


(8)           that, if the
aggregate principal amount of Notes and other pari
passu Indebtedness constituting First
Lien Obligations surrendered by holders thereof exceeds the Offer Amount, the
Company will select the Notes and such other pari
passu Indebtedness to be purchased on a pro  rata basis
based on the principal amount of Notes and such other pari
passu Indebtedness surrendered (with
such adjustments as may be deemed appropriate


 


63





















 


by
the Company so that only Notes in denominations of $2,000, or integral multiples
of $1,000 in excess thereof, will be purchased); and


 


(9)           that Holders whose
Notes were purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).


 


(e)           On or before the Purchase Date, the Company will, to the
extent lawful, accept for payment, on a pro  rata basis to the extent necessary, the Offer Amount of
Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less
than the Offer Amount has been tendered, all Notes tendered, and will deliver
or cause to be delivered to the Trustee the Notes properly accepted together
with an Officer’s Certificate stating that such Notes or portions thereof were
accepted for payment by the Company in accordance with the terms of this Section 3.08.  The Company, the Depositary or the Paying
Agent, as the case may be, will promptly (but in any case not later than five
days after the Purchase Date) 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 for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate
and mail or deliver (or cause to be transferred by book entry) 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 will publicly
announce the results of the Asset Sale Offer or Event of Loss Offer, as
applicable, on the Purchase Date.


 


(f)            Other than as specifically provided in this Section 3.08,
any purchase pursuant to this Section 3.08 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.


 


ARTICLE 4

COVENANTS


 


Section 4.01.          Payment of Notes.


 


The Issuers will pay or cause to be paid the
principal of, premium, if any, and interest and Additional Interest, if any,
on, the Notes on the dates and in the manner provided in the Notes.  Principal, premium, if any, and interest and
Additional Interest, if any, will be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Issuers in
immediately available funds and designated for and sufficient to pay all
principal, premium, if any, and interest then due.  The Issuers will pay all Additional Interest,
if any, in the same manner on the dates and in the amounts set forth in the
Registration Rights Agreement.


 


The Issuers will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at the rate equal to 2% per annum in excess of the then applicable
interest rate on the Notes to the extent lawful; it will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest (without regard to any
applicable grace period) at the same rate to the extent lawful.


 


64

















 


Section 4.02.          Maintenance of Office or
Agency.


 


The Issuers will maintain in the Borough of
Manhattan, the City of New York, an office or agency (which may be an office of
the Trustee or an affiliate of the Trustee, Registrar or co-registrar) 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
will 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 fail to maintain any such required office or
agency or 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
hereby designate the Corporate Trust Office of the Trustee as one such office
or agency of the Issuers for all such purposes.


 


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; provided, however,
that no such designation or rescission will in any manner relieve the Issuers
of their obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes.  The Issuers will 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.


 


Section 4.03.          Reports.


 


Whether or not required by the SEC, so long as any
Notes are outstanding, the Company will furnish to the Holders of the Notes, or
file electronically with the SEC through the SEC’s Electronic Data Gathering,
Analysis and Retrieval System (or any successor system):


 


(1)           within 120 days
after the end of each fiscal year, all annual financial information and
certifications that would be required to be contained in a filing with the SEC
on Form 20-F or 40-F, as applicable, if the Company were required to file
such Form, including a “Management’s discussion and analysis of financial
condition and results of operations” and a report on the annual financial
statements by the Company’s independent accounting firm;


 


(2)           within 60 days after
the end of each of the first three fiscal quarters of each fiscal year, all
interim quarterly financial information that would be required to be contained
in quarterly reports under Alberta Securities Laws if the Company were a “reporting
issuer” or the equivalent under such laws or that would be required to be
provided to security holders of a company with securities listed on the Toronto
Stock Exchange, in each case including a “Management’s discussion and analysis
of financial condition and results of operations”; and


 


(3)           within the time
periods specified in the SEC’s rules and regulations, all current reports
that would be required to be filed with the SEC on Form 6-K if the Company
were required to file these reports.


 


65














 


Following the consummation of the Exchange Offer
contemplated by the Registration Rights Agreement, whether or not required by
the SEC, the Company will file a copy of all of the information and reports
referred to in clauses (1), (2) and (3) above with the SEC for public
availability within the time periods specified, with respect to the information
and reports in clauses (1) and (3) above, in the SEC’s rules and
regulations and, with respect to the information and reports in clause (2) above,
within the time periods applicable to a reporting issuer (other than a venture
issuer) under Alberta Securities Laws (unless the SEC will not accept the
filing) and make the information available to securities analysts and
prospective investors upon request.  So
long as any Notes remain outstanding, the Issuers shall furnish to the Holders
and to securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


Notwithstanding anything to the contrary, the
Issuers will be deemed to have complied with their obligations in the preceding
two paragraphs following the filing of the Exchange Offer Registration
Statement and prior to the effectiveness thereof if the Exchange Offer
Registration Statement includes the information specified in clause (1) above
at the times it would otherwise be required to file such Forms.  The reports referred to in clauses (1), (2) and
(3) above shall not in any event be required to include, unless required
by the rules and regulations of the SEC in reports actually filed with or
furnished to the SEC, (1) any additional financial information that would
be required by Items 3-10 or 3-16 of Regulation S-X, including separate
financial statements of any Guarantor; (2) any assessment by management of
the Company’s disclosure controls and procedures or internal control over
financial reporting, or any audit or review of, or attestation relating to,
such an assessment; (3) any certification required by any such form or the
Sarbanes-Oxley Act of 2002; or (4) any exhibit.


 


The Issuers shall file with the Trustee (within 15
days after filing with the SEC in the case of reports, information and
documents which pursuant to the TIA must be filed with the SEC and furnished to
the Trustee) and transmit to the Holders, such reports, information and other
documents, if any, at such times and in such manner, as shall be required by
the TIA.  Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee’s receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officer’s
Certificates).


 


Section 4.04.                             Compliance Certificate.


 


(a)                                  The Issuers and
each Guarantor (to the extent that such Guarantor is so required under the TIA)
shall deliver to the Trustee, within 90 days after the end of each fiscal year,
an Officer’s Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officer with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations 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 has occurred, describing all such Defaults or Events of Default of
which he or 


 


66

















 


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 on account of the principal of or interest, if any, on
the Notes is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect
thereto.


 


(b)                                 So long as any
of the Notes are outstanding, the Company will deliver to the Trustee,
forthwith upon any Officer becoming aware of any Default or Event of Default,
an Officer’s  Certificate specifying such
Default or Event of Default and what action the Company is taking or proposes
to take with respect thereto and whether additional premium is payable pursuant
to Section 6.02 hereof.


 


Section 4.05.                             Taxes.


 


The Company will pay, and will 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 4.06.                             Stay, Extension and Usury Laws.


 


The Issuers and each of the Guarantors covenants (to
the extent that it may lawfully do so) that they 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 the Issuers and each of the Guarantors (to the extent that it
may lawfully do so) hereby expressly waive all benefit or advantage of any such
law, and covenants that they shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.


 


Section 4.07.                             Limitations on Restricted
Payments.


 


(a)                                  The Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, make any Restricted Payment if at the time of such Restricted
Payment:


 


(1)                                  a Default shall
have occurred and be continuing or shall occur as a consequence thereof;


 


(2)                                  the Company
cannot, after giving pro forma effect to such Restricted Payment as if it had
been made at the beginning of the applicable four-quarter period, incur $1.00
of additional Indebtedness pursuant to the Coverage Ratio Exception; or


 


(3)                                  the amount of
such Restricted Payment, when added to the aggregate amount of all other
Restricted Payments made after the Issue Date (other than Restricted Payments
made pursuant to clause (2), (3), (4), (5) or (6) of clause (b) of
this Section 4.07), exceeds the sum (the “Restricted
Payments Basket”) of (without duplication):


 


67

















 


(A)                              50% of
Consolidated Net Income for the period (taken as one accounting period)
commencing on July 1, 2009 to and including the last day of the fiscal
quarter ended immediately prior to the date of such calculation for which
consolidated financial statements are available (or, if such Consolidated Net Income
shall be a deficit, minus 100% of such aggregate deficit), plus


 


(B)                                100% of (i) the
aggregate net cash proceeds, (ii) the Fair Market Value of marketable
securities and (iii) the Fair Market Value of property or assets received
by the Company either (x) as contributions to the common equity of the
Company after the Issue Date or (y) from the issuance and sale of
Qualified Equity Interests after the Issue Date (or with respect to the Closing
Date Liquidity Amount, on the date of the closing of the Acquisition), other
than (A) any such proceeds which are used to redeem Notes in accordance
with Section 3.07(c), or (B) any such proceeds or assets received
from a Subsidiary of the Company; provided that,
with respect to this subclause (iii) of this clause (B), with respect to
any property or assets (1) involving aggregate value in excess of $10.0
million, the Company shall provide an Officer’s Certificate certifying as to
the Fair Market Value of such property or assets and (2) involving
aggregate value in excess of $20.0 million, the Company shall provide the
Officer’s Certificate described in the preceding clause (1) and a written
opinion as to the Fair Market Value of such property or assets, plus


 


(C)                                the aggregate
amount by which Indebtedness (other than any Subordinated Indebtedness)
incurred by the Company or any Restricted Subsidiary subsequent to the Issue
Date is reduced on the Company’s balance sheet upon the conversion or exchange
(other than by a Subsidiary of the Company) into Qualified Equity Interests
(less the amount of any cash, or the fair value of assets, distributed by the
Company or any Restricted Subsidiary upon such conversion or exchange), plus


 


(D)                               in the case of
the disposition or repayment of or return on any Investment that was treated as
a Restricted Payment made after the Issue Date, an amount (to the extent not
included in the computation of Consolidated Net Income) equal to the lesser of (i) 100%
of the aggregate amount received by the Company or any Restricted Subsidiary in
cash or other property (valued at the Fair Market Value thereof) as the return
of capital with respect to such Investment and (ii) the amount of such
Investment that was treated as a Restricted Payment, in either case, less the
cost of the disposition of such Investment and net of taxes, plus


 


(E)                                 upon a
Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
lesser of (i) the Fair Market Value of the Company’s proportionate
interest in such Subsidiary immediately following such Redesignation, and (ii) the
aggregate amount of the Company’s Investments in such Subsidiary to the extent
such Investments reduced the Restricted Payments Basket and were not previously
repaid or otherwise reduced.


 


68

















 


(b)                                 The provisions
of Section 4.07(a) will not prohibit:


 


(1)                                  the payment by
the Company or any Restricted Subsidiary of any dividend or the consummation of
any irrevocable redemption within 60 days after the date of declaration or
giving of the redemption notice, as the case may be, if on the date of declaration
or notice the dividend or redemption payment would have complied with the provisions
of this Indenture;


 


(2)                                  the redemption
of any Equity Interests of the Company or any Restricted Subsidiary in exchange
for, or out of the proceeds of the substantially concurrent issuance and sale
of, Qualified Equity Interests;


 


(3)                                  the redemption
of Subordinated Indebtedness of the Company or any Restricted Subsidiary (a) in
exchange for, or out of the proceeds of the substantially concurrent issuance
and sale of, Qualified Equity Interests, (b) in exchange for, or out of
the proceeds of the substantially concurrent incurrence of, Refinancing
Indebtedness permitted to be incurred under Section 4.09 and the other
terms of this Indenture, (c) in connection with an Asset Sale to the
extent required by the agreement governing such Subordinated Indebtedness but
only if the Company shall have complied with Sections 3.08, 4.10 and 4.15 and
purchased all Notes validly tendered pursuant to the relevant offer prior to
redeeming such Subordinated Indebtedness, or (d) upon the occurrence of a
Change of Control;


 


(4)                                  payments to
Parent to permit Parent, and which are used by Parent, to redeem Equity
Interests of Parent held by officers, directors, consultants or employees or
former officers, directors, consultants or employees (or their transferees,
estates or beneficiaries under their estates) of the Company or any Restricted
Subsidiary, upon their death, disability, retirement, severance or termination
of employment or service; provided that
the aggregate cash consideration paid for all such redemptions shall not exceed
(A) $2.5 million during any calendar year (with unused amounts being
available to be used in the following calendar year, but not in any succeeding
calendar year) plus (B) the amount of any
net cash proceeds received by or contributed to the Company from the issuance
and sale after the Issue Date of Qualified Equity Interests of Parent or the
Company to its officers, directors or employees that have not been applied to
the payment of Restricted Payments pursuant to this clause (4), plus (C) the net cash proceeds of any “key-man” life
insurance policies that have not been applied to the payment of Restricted
Payments pursuant to this clause (4);


 


(5)                                  Permitted Joint
Venture Payments;


 


(6)                                  Permitted
Payments to Parent; and


 


(7)                                  repurchases of
Equity Interests deemed to occur upon the exercise of stock options, warrants,
convertible or exchangeable securities or other similar instruments if the
Equity Interests represents a portion of the exercise price thereof;


 


69

















 


provided that (a) in
the case of any Restricted Payment pursuant to clause (3) or (4) above,
no Default shall have occurred and be continuing or occur as a consequence
thereof and (b) no issuance and sale of Qualified Equity Interests that
are used to make a payment pursuant to clauses (2), (3) or (4)(B) above
shall increase the Restricted Payments Basket.


 


Section 4.08.                                             Limitations
on Dividend and Other Restrictions Affecting Restricted Subsidiaries.


 


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any consensual encumbrance or consensual
restriction on the ability of any Restricted Subsidiary to:


 


(a)                                  pay dividends
or make any other distributions on or in respect of its Equity Interests;


 


(b)                                 make loans or
advances or pay any Indebtedness or other obligation owed to the Company or any
other Restricted Subsidiary; or


 


(c)                                  sell, lease or
transfer any of its assets to the Company or any other Restricted Subsidiary;


 


except for:


 


(1)                                  encumbrances or
restrictions existing under or by reason of applicable law, rule, regulation or
order;


 


(2)                                  encumbrances or
restrictions existing under the Indenture, the Notes, the Note Guarantees, a
Liquidity Facility, the Collateral Documents and the Intercreditor Agreement;


 


(3)                                  non-assignment
provisions of any contract or any lease entered into in the ordinary course of
business;


 


(4)                                  encumbrances or
restrictions existing under agreements existing on the Issue Date (including,
without limitation, the Closing Date Liquidity Facility) as in effect on that
date;


 


(5)                                  restrictions
relating to any Indebtedness or Lien permitted under this Indenture imposed by
the holder of such Indebtedness or Lien;


 


(6)                                  restrictions
imposed under any agreement to sell assets permitted under this Indenture to
any Person pending the closing of such sale;


 


(7)                                  any instrument
governing Acquired Indebtedness, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person or the properties or assets of the Person so acquired;


 


70

















 


(8)                                  any other
agreement governing Indebtedness entered into after the Issue Date that
contains encumbrances and restrictions that are not materially more restrictive
with respect to any Restricted Subsidiary than those in effect on the Issue
Date with respect to that Restricted Subsidiary pursuant to agreements in
effect on the Issue Date;


 


(9)                                  customary
provisions in partnership agreements, limited liability company organizational
governance documents, joint venture agreements and other similar agreements
entered into in the ordinary course of business that restrict the transfer of
ownership interests in such partnership, limited liability company, joint venture
or similar Person;


 


(10)                            Purchase Money
Indebtedness incurred in compliance with Section 4.09 that impose
restrictions of the nature described in clause (c) above on the assets
acquired;


 


(11)                            restrictions on
cash or other deposits or net worth imposed by customers, suppliers or
landlords under contracts entered into in the ordinary course of business;


 


(12)                            Indebtedness or
other contractual requirements of a Securitization Subsidiary in connection
with a Qualified Securitization Transaction; provided,
that such restrictions apply only to such Securitization Subsidiary; and


 


(13)                            any
encumbrances or restrictions imposed by any amendments or refinancings of the
contracts, instruments or obligations referred to in clauses (1) through
(12) above; provided that such amendments or
refinancings are, in the good faith judgment of the Company’s Board of
Directors, no more materially restrictive with respect to such encumbrances and
restrictions than those prior to such amendment or refinancing.


 


Section 4.09.                             Limitations on Additional
Indebtedness.


 


(a)                                  The Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, incur any Indebtedness; provided that
an Issuer or any Subsidiary Guarantor may incur additional Indebtedness and any
Restricted Subsidiary may incur Acquired Indebtedness, in each case, if, after
giving effect thereto, the Consolidated Interest Coverage Ratio would be at
least 2.00 to 1.00 (the “Coverage Ratio Exception”).


 


(b)                                 Notwithstanding
the provisions of Section 4.09(a), each of the following shall be permitted
(the “Permitted Indebtedness”):


 


(1)                                  Indebtedness
and other Obligations, including Hedging Obligations, of a Securitization
Subsidiary, the Company and/or any Subsidiary Guarantor under any Liquidity
Facility in an aggregate amount outstanding at the time of such incurrence not
in excess of the Borrowing Base;


 


(2)                                  the Notes
issued on the Issue Date and the Note Guarantees and the Exchange Notes and the
Note Guarantees in respect thereof to be issued pursuant to the Registration
Rights Agreements;


 


71

















 


(3)                                  Indebtedness of
the Company and the Restricted Subsidiaries to the extent outstanding on the
Issue Date after giving effect to the intended use of proceeds of the Note
(other than Indebtedness referred to in Section 4.09(b)(1), (2) or
(5));


 


(4)                                  Indebtedness
under Hedging Obligations entered into for bona fide hedging purposes of the
Company or any Restricted Subsidiary not for the purpose of speculation (including
those that are designed to protect against fluctuations in interest rates, foreign
currency exchange rates and commodity prices); provided
that in the case of Hedging Obligations relating to interest rates, (a) such
Hedging Obligations relate to payment obligations on Indebtedness otherwise
permitted to be incurred by this Section 4.09, and (b) the notional
principal amount of such Hedging Obligations at the time incurred does not
exceed the principal amount of the Indebtedness to which such Hedging Obligations
relate;


 


(5)                                  Indebtedness of
the Company owed to a Restricted Subsidiary and Indebtedness of any Restricted
Subsidiary owed to the Company or any other Restricted Subsidiary; provided, however, that
upon any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or
such Indebtedness being owed to any Person other than the Company or a
Restricted Subsidiary, the Company or such Restricted Subsidiary, as applicable,
shall be deemed to have incurred Indebtedness not permitted by this clause (5);


 


(6)                                  Indebtedness in
respect of bid, performance or surety bonds or obligations of a similar nature
issued for the account of the Company or any Restricted Subsidiary in the
ordinary course of business, including guarantees or obligations of the Company
or any Restricted Subsidiary with respect to letters of credit supporting such
bid, performance or surety obligations (in each case other than for an
obligation for money borrowed);


 


(7)                                  Purchase Money
Indebtedness incurred by the Company or any Restricted Subsidiary, and
Refinancing Indebtedness thereof, in an aggregate amount not to exceed at any
time outstanding the greater of (a) $15.0 million and (b) 2.0% of
Consolidated Net Tangible Assets at that time;


 


(8)                                  Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently (except in the case of daylight
overdrafts) drawn against insufficient funds in the ordinary course of
business; provided, however,
that such Indebtedness is extinguished within fifteen Business Days of incurrence;


 


(9)                                  Indebtedness
arising in connection with endorsement of instruments for deposit in the ordinary
course of business;


 


(10)                            Refinancing
Indebtedness with respect to Indebtedness incurred pursuant to the Coverage
Ratio Exception or Section 4.09(b)(2), (3) or (7) or this clause
(10);


 


(11)                            Indebtedness
arising from indemnification, adjustment of purchase price, earn-out or similar
obligations, in each case, incurred or assumed in connection with the acquisition
or disposition of any business or assets of the Company or any Restricted 


 


72

















 


Subsidiary
or Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
Equity Interests for the purpose of financing or in contemplation of any such
acquisition; provided that (a) any amount
of such obligations included on the face of the balance sheet of the Company or
any Restricted Subsidiary shall not be permitted under this clause (11) and (b) in
the case of a disposition, the maximum aggregate liability in respect of all
such obligations outstanding under this clause (11) shall at no time exceed the
gross proceeds actually received by the Company and the Restricted Subsidiaries
in connection with such disposition;


 


(12)                            Indebtedness
consisting of Indebtedness issued by the Company or any Restricted Subsidiary
to future, current or former officers, directors, consultants and employees
thereof, their respective estates, spouses or former spouses, in each case to finance
the purchase or redemption of Equity Interests of the Company or any direct or
indirect parent company of the Company to the extent permitted by Section 4.07(b)(4);


 


(13)                            any guarantee
by the Company or any of the Guarantors of Indebtedness of the Company or a
Restricted Subsidiary that was permitted to be incurred by another provision of
this Section 4.09; provided that
if the Indebtedness being guaranteed is subordinated to or pari passu
with the Notes, then the guarantee must be subordinated or pari passu
to the same extent as the Indebtedness guaranteed; and


 


(14)                            Indebtedness of
the Company or any Restricted Subsidiary in an aggregate amount not to exceed
the greater of (a) $30.0 million and (b) 2% of Consolidated Net
Tangible Assets at any time outstanding.


 


For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one
of the categories of Permitted Indebtedness described in clauses (1) through
(14) above or is entitled to be incurred pursuant to the Coverage Ratio
Exception, the Company shall, in its sole discretion, classify such item of
Indebtedness and may divide and classify such Indebtedness in more than one of
the types of Indebtedness described, except that Indebtedness outstanding under
the Liquidity Facilities on the Issue Date shall be deemed to have been
incurred under clause (1) above, and may later reclassify any item of
Indebtedness described in clauses (1) through (14) above (provided that at the time of reclassification it meets the
criteria in such category or categories). 
In addition, for purposes of determining any particular amount of
Indebtedness under this Section 4.09, guarantees, Liens or letter of
credit obligations supporting Indebtedness otherwise included in the determination
of such particular amount shall not be included so long as incurred by a Person
that could have incurred such Indebtedness.


 


The accrual of interest or preferred stock dividends
and the accretion or amortization of original issue discount will not be deemed
to be an incurrence of Indebtedness or an issuance of Disqualified Equity
Interests for purposes of this Section 4.09; provided,
in each such case, that the amount of any such accrual or accretion is included
in Consolidated Interest Expense of the Company as accrued.  For purposes of determining compliance with
any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the
Dollar Equivalent principal amount of Indebtedness denominated in a foreign
currency shall be utilized, calculated based on 


 


73

















 


the relevant currency
exchange rate in effect on the date such Indebtedness was incurred.  Notwithstanding any other provision of this Section 4.09,
the maximum amount of Indebtedness that the Company or any Restricted Subsidiary
may incur pursuant to this Section 4.09 shall not be deemed to be exceeded
solely as a result of fluctuations in exchange rates or currency values.


 


Section 4.10.                             Limitations on Asset Sales.


 


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly consummate any Asset Sale of
Collateral (other than After Acquired Collateral) if the Fair Market Value of
the Collateral (other than After Acquired Collateral) subject to such Asset
Sale, taken together with the Fair Market Value of Collateral (other than After
Acquired Collateral) subject to Asset Sales during (i) the twelve months
immediately preceding such Asset Sale, would exceed $25.0 million or (ii) since
the Issue Date, would exceed $75.0 million. 
In addition, other than a transaction subject to and in compliance with Section 5.01,
the Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, consummate any Asset Sale unless:


 


(1)                                  the Company or
such Restricted Subsidiary receives consideration at the time of such Asset
Sale at least equal to the Fair Market Value of the assets included in such Asset
Sale;


 


(2)                                  at least 75% of
the total consideration in such Asset Sale consists of cash or Cash Equivalents;


 


(3)                                  if such Asset
Sale involves the disposition of Collateral, the Company or such Restricted
Subsidiary has complied with the provisions of the Indenture and the Collateral
Documents, which shall include an obligation to provide advance written notice
of such Asset Sale to the Trustee and the agent under any existing Liquidity
Facility; and


 


(4)                                  the Net
Available Proceeds thereof shall be paid directly by the purchaser of the
Collateral to the Collateral Agent for deposit into the Collateral Account,
and, if any property other than cash or Cash Equivalents is included in such
Net Available Proceeds, such property shall be made subject to the Lien of this
Indenture and the Collateral Documents.


 


For purposes of clause (2), the following shall be
deemed to be cash:


 


(a)                                  the amount (without
duplication) of any Indebtedness (other than Subordinated Indebtedness) of the
Company or such Restricted Subsidiary that is expressly assumed by the
transferee in such Asset Sale and with respect to which the Company or such Restricted
Subsidiary, as the case may be, is unconditionally released by the holder of
such Indebtedness,


 


(b)                                 the amount of any
obligations received from such transferee that are within 30 calendar days
converted by the Company or such Restricted Subsidiary to cash (to the extent
of the cash actually so received), and


 


74

















 


(c)                                  in the case of an Asset Sale
involving After Acquired Collateral or assets not constituting Collateral, the
Fair Market Value of (i) any assets (other than securities) received by
the Company or any Restricted Subsidiary to be used by it in a Permitted Business
(and, to the extent the assets involved in such Asset Sale involve Collateral,
the assets received shall be made subject to the provisions of the Collateral
Documents and shall be included in the Collateral in accordance with the
provisions of this Indenture), (ii) Equity Interests in a Person that is a
Subsidiary Guarantor or in a Person engaged in a Permitted Business that shall
become a Subsidiary Guarantor immediately upon the acquisition of such Person
by the Company or (iii) a combination of (i) and (ii).


 


If at any time any non-cash consideration received
by the Company or any Restricted Subsidiary, as the case may be, in connection
with any Asset Sale is repaid or converted into or sold or otherwise disposed
of for cash (other than interest received with respect to any such non-cash consideration),
then the date of such repayment, conversion or disposition shall be deemed to
constitute the date of an Asset Sale hereunder and the Net Available Proceeds
thereof shall be applied in accordance with this Section 4.10.


 


If the Company or any Restricted Subsidiary engages
in an Asset Sale, the Company or such Restricted Subsidiary shall, no later
than 365 days following the consummation thereof, apply all or any of the Net
Available Proceeds therefrom:


 


(1)                                  to the extent of proceeds
not from an Asset Sale of Collateral, to repay borrowings or other amounts
outstanding under a Liquidity Facility;


 


(2)                                  to repay First Lien
Obligations;


 


(3)                                  to the extent of proceeds
from an Asset Sale of Collateral, to invest in assets that become part of the
Collateral;


 


(4)                                  to the extent of proceeds
from an Asset Sale not involving Collateral (A) to invest all or any part
of the Net Available Proceeds thereof in the purchase of assets (other than
securities) to be used by the Company or any Restricted Subsidiary in the
Permitted Business, (B) to acquire Qualified Equity Interests in a Person
that is a Restricted Subsidiary or in a Person engaged in a Permitted Business
that shall become a Restricted Subsidiary immediately upon the consummation of
such acquisition or (C) a combination of (A) and (B);


 


(5)                                  to make a capital
expenditure that is used or useful in a Permitted Business (and, to the extent
any assets are acquired through such capital expenditure and constitute
Collateral, the assets acquired shall be made subject to the provisions of the
Collateral Documents and included in the Collateral in accordance with the
provisions of this Indenture); and/or


 


(6)                                  make an Asset Sale Offer in
accordance with the procedures described below and in Section 3.08.


 


75














 


The amount of Net Available Proceeds not applied or
invested as provided in this paragraph of this Section 4.10 will
constitute “Excess Proceeds”; provided
that a binding commitment to invest in assets made within 360 calendar days of
the relevant Asset Sale shall be treated as a permitted application of the Net
Available Proceeds from such Asset Sale, and provided
further, that any Net Available Proceeds
subject to any such commitment not applied in accordance with the foregoing
within 90 calendar days after the expiration of 360 calendar days from the
relevant Asset Sale shall constitute Excess Proceeds.


 


When the aggregate amount of Excess Proceeds equals
or exceeds $15.0 million, the Company will be required to make an offer to
purchase from all Holders and, if applicable, redeem (or make an offer to do
so) any First Lien Obligations the provisions of which require the Company to
redeem such Indebtedness with the proceeds from any Asset Sales (or offer to do
so), in an aggregate principal amount of Notes and such First Lien Obligations
equal to the amount of such Excess Proceeds as follows:


 


(1)                                  the Company will (a) make
an Asset Sale Offer in accordance with the procedures set forth in Section 3.08,
and (b) redeem (or make an offer to do so) any such other First Lien Obligations,
pro rata in proportion to the respective principal amounts of the Notes and
such other Indebtedness required to be redeemed, the maximum principal amount
of Notes and First Lien Obligations that may be redeemed out of the amount (the
“Payment Amount”) of such Excess
Proceeds;


 


(2)                                  the offer price for the
Notes will be payable in cash in an amount equal to (x) the Collateral
Other Than After Acquired Collateral Net Proceeds Offered Price, in the case of
a Asset Sale Offer with the respect to proceeds of Collateral (other than After
Acquired Collateral) or (y) in the case of a Asset Sale Offer with respect
to other proceeds, 100% of the principal amount of the Notes tendered pursuant
to an Asset Sale Offer, plus accrued and unpaid interest thereon, if any, to
the date such Asset Sale Offer is consummated (the “Other
Offered Price”), in accordance with the procedures set forth in Section 3.08
and the redemption price for such First Lien Obligations shall be as set forth
in the related documentation governing such Indebtedness;


 


(3)                                  if the aggregate applicable
Offered Price of Notes validly tendered and not withdrawn by Holders thereof
exceeds the pro rata portion of the Payment Amount allocable to the Notes, such
Notes to be purchased will be selected on a pro  rata basis; and


 


(4)                                  upon completion of such
Asset Sale Offer in accordance with the foregoing provisions, the amount of
Excess Proceeds with respect to which such Asset Sale Offer was made shall be
deemed to be zero.


 


To the extent that the sum of the aggregate
applicable Offered Price of Notes tendered pursuant to a Asset Sale Offer and
the aggregate First Lien Obligations paid to the holders of such Indebtedness
is less than the Payment Amount relating thereto (such shortfall constituting a
“Net Proceeds Deficiency”), the Company
may use the Net Proceeds Deficiency, or a portion thereof, for general
corporate purposes, subject to the provisions of Section 3.08.


 


76

















 


In the event of the transfer of substantially all
(but not all) of the assets of the Company and the Restricted Subsidiaries as
an entirety to a Person in a transaction covered by and effected in accordance
with Section 5.01, the successor shall be deemed to have sold for cash at
Fair Market Value the assets of the Company and the Restricted Subsidiaries not
so transferred for purposes of this Section 4.10, and the successor shall
comply with the provisions of this Section 4.10 with respect to such
deemed sale as if it were an Asset Sale (with such Fair Market Value being
deemed to be Net Available Proceeds for such purpose).


 


The Company will comply with applicable tender offer
rules, including the requirements of Rule 14e-1 under the Exchange Act and
any other applicable laws and regulations in connection with the purchase of
Notes pursuant to a Asset Sale Offer.  To
the extent that the provisions of any securities laws or regulations conflict
with provisions of Section 3.08 hereof or this Section 4.10, the
Company shall comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under Section 3.08
hereof or this Section 4.10 by virtue of this compliance.


 


Section 4.11.                             Limitations on Transactions with
Affiliates.


 


(a)                                  The Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, in one transaction or a series of related transactions, sell,
lease, transfer or otherwise dispose of any of its assets to, or purchase any
assets from, or enter into any contract, agreement, understanding, loan, advance
or guarantee with, or for the benefit of, any Affiliate (an “Affiliate Transaction”) involving aggregate payments or
consideration in excess of $5.0 million, other than transactions with entities
on an arm’s-length basis existing on the Issue Date and disclosed in the
Offering Memorandum, unless:


 


(1)                                  such 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 at such time on an arm’s-length basis by the Company or
that Restricted Subsidiary from a Person that is not an Affiliate of the
Company or that Restricted Subsidiary; and


 


(2)                                  the Company
delivers to the Trustee:


 


(a)                                  with respect to
any Affiliate Transaction involving aggregate value in excess of $20.0 million,
an Officer’s Certificate certifying that such Affiliate Transaction complies
with clause (1) above and a Secretary’s Certificate which sets forth and
authenticates a resolution that has been adopted by the Independent Directors
approving such Affiliate Transaction; and


 


(b)                                 with respect to
any Affiliate Transaction involving aggregate value of $50.0 million or more,
the certificates described in the preceding clause (a) and a written
opinion as to the fairness of such Affiliate Transaction to the Company or such
Restricted Subsidiary from a financial point of view issued by an Independent
Financial Advisor.


 


77

















 


(b)                                 The following
items will not be deemed to be Affiliate Transactions and, therefore, will not
be subject to the provisions of Section 4.11(a) hereof:


 


(1)                                  transactions
between or among (a) the Company and one or more Restricted Subsidiaries
or (b) Restricted Subsidiaries; provided, in
each case, that no Affiliate of the Company (other than another Restricted
Subsidiary) owns Equity Interests of any such Restricted Subsidiary;


 


(2)                                  reasonable
director, officer, consultant and employee compensation (including bonuses) and
other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements, in each case approved by the Independent
Directors;


 


(3)                                  payments to the
Sponsor and any of its Affiliates (a) for the management fee pursuant to
the Management Agreement or (b) for any other financial advisory, financing,
underwriting or placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures,
which payments, in the case of this clause (b), are approved by a majority of
the Independent Directors of the Company in good faith not to exceed, with
respect to this clause (3), $5.0 million in the aggregate in any calendar year;
provided that no Default shall have
occurred and be continuing or occur as a consequence thereof;


 


(4)                                  Permitted
Payments to Parent;


 


(5)                                  loans and
advances permitted by clause (3) of the definition of “Permitted Investment”;


 


(6)                                  Restricted
Payments of the type described in clause (1), (2) or (4) of the
definition of “Restricted Payment” and which are made in accordance with Section 4.07;


 


(7)                                  (x) any
agreement in effect on the Issue Date and disclosed in the Offering Memorandum,
as in effect on the Issue Date, or as thereafter amended or replaced in any
manner, that, taken as a whole, is not more disadvantageous to the Holders or
the Company in any material respect than such agreement as it was in effect on
the Issue Date or (y) any transaction pursuant to any agreement referred
to in the immediately preceding clause (x);


 


(8)                                  any transaction
with a joint venture or similar entity, including any entity in which the
Company owns a minority interest, that would constitute an Affiliate Transaction
solely because the Company or a Restricted Subsidiary owns an equity interest
in or otherwise controls such joint venture or similar entity; provided that no Affiliate of the Company or any of its
Subsidiaries other than the Company or a Restricted Subsidiary shall have a beneficial
interest in such joint venture or similar entity;


 


(9)                                  transactions
between a Securitization Subsidiary and any Person in which the Securitization
Subsidiary has an Investment; and


 


78

















 


(10)                            (a) any
transaction with an Affiliate where the only consideration paid by the Company
or any Restricted Subsidiary is Qualified Equity Interests or (b) the issuance
or sale of any Qualified Equity Interests.


 


Section 4.12.                             Limitations on Liens.


 


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Lien (other than Permitted Liens) of any nature
whatsoever against any assets of the Company or any Restricted Subsidiary
(including Equity Interests of a Restricted Subsidiary), whether owned at the
Issue Date or thereafter acquired other than Permitted Liens.  Parent shall not, directly or indirectly,
create, incur, assume or permit or suffer to exist any Lien of any nature
whatsoever against any Equity Interests of the Company, whether owned at the
Issue Date or thereafter acquired, other than Liens created by this Indenture
and the Collateral Documents and Liens described in clauses (1), (2)(a) or
(5) of the definition of Permitted Liens.


 


Section 4.13.                             Conduct of Business.


 


The Company will not, and will not permit any
Restricted Subsidiary to, engage in any business other than the Permitted
Business, except to such extent as would not be material to the Company and the
Restricted Subsidiaries, taken as a whole.


 


Section 4.14.                             Corporate Existence.


 


Subject to Article 5 hereof, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect:


 


(1)                                  its corporate
existence, and the corporate, partnership or other existence of each of its
Subsidiaries (other than 1370307 Alberta Ltd.), in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Subsidiary, in all material respects; and


 


(2)                                  the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any of its
Subsidiaries, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and its Subsidiaries, taken as a whole, and that the loss thereof is not
adverse in any material respect to the Holders of the Notes.


 


Section 4.15.                             Offer to Repurchase upon Change
of Control.


 


(a)                                  Upon the
occurrence of a Change of Control, the Company will make an offer (a “Change of Control Offer”) to each Holder to repurchase all
or any part (in the case of a partial repurchase, equal to $2,000 or an
integral multiple of $1,000 in excess thereof) of that Holder’s Notes at a
purchase price in cash equal to 101% of the principal amount of Notes
repurchased plus accrued and unpaid interest and Additional Interest, if any,
to the date of purchase, subject 


 


79

















 


to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment
date (the “Change of Control Payment”).  Within 30 days following any Change of
Control, the Company shall mail, or caused to be mailed, a notice to each
Holder describing the transaction or transactions that constitute the Change of
Control and stating:


 


(1)                                  that the Change
of Control Offer is being made pursuant to this Section 4.15 and that all
Notes tendered will be accepted for payment;


 


(2)                                  the purchase
price and the purchase date, which shall be no earlier than 30 days and no
later than 60 days from the date such notice is mailed (the “Change of Control Payment Date”);


 


(3)                                  that any Note
not tendered will continue to accrue interest;


 


(4)                                  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 will cease to accrue
interest after the Change of Control Payment Date;


 


(5)                                  that Holders
electing to have any Notes purchased pursuant to a Change of Control Offer will
be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry
transfer, to the Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day preceding the Change of Control
Payment Date;


 


(6)                                  that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the second Business Day preceding the
Change of Control Payment Date, 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 his election to
have the Notes purchased; and


 


(7)                                  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.


 


The Issuers will comply with applicable tender offer
rules, including the requirements of Rule 14e-l under the Exchange Act and
any other applicable laws and regulations in connection with the purchase of
Notes pursuant to a Change of Control Offer. 
To the extent that the provisions of any securities laws or regulations
conflict with the provisions of Sections 3.08 or 4.15 hereof, the Issuers shall
comply with the applicable securities laws and regulations and will not be
deemed to have breached their obligations under Section 3.08 hereof or
this Section 4.15 by virtue of this compliance.


 


(b)                                 On the Change
of Control Payment Date, the Company will, to the extent lawful:


 


(1)                                  accept for
payment all Notes or portions of Notes properly tendered pursuant to the Change
of Control Offer;


 


80

















 


(2)                                  deposit with
the Paying Agent an amount equal to the Change of Control Payment in respect of
all Notes or portions of Notes properly tendered; and


 


(3)                                  deliver or
cause to be delivered to the Trustee the Notes properly accepted together with
an Officer’s Certificate stating the aggregate principal amount of Notes or
portions of Notes being purchased by the Company.


 


The Paying Agent will promptly mail to each Holder
of Notes properly tendered the Change of Control Payment for such Notes, and
the Trustee will promptly 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.  The Company will publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.


 


(c)                                  Notwithstanding
anything to the contrary in this Section 4.15, the Issuers’ obligation to
make a Change of Control Offer will be satisfied if (1) a third party
makes the Change of Control Offer in the manner and at the times and otherwise
in compliance with the requirements set forth in this Section 4.15 and
purchases all Notes properly tendered and not withdrawn under the Change of
Control Offer, or (2) notice of redemption of all of the outstanding Notes
has been given as set forth in Section 3.07 hereof, unless and until there
is a default in payment of the applicable redemption price.


 


(d)                                 Notwithstanding
anything to the contrary contained in this Section 4.15, a Change of
Control Offer may be made in advance of a Change of Control and conditioned
upon the consummation of such Change of Control.


 


Section 4.16.                             Payments for Consent.


 


The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture, the Notes, the Note Guarantees, the Collateral Documents,
the Intercreditor Agreement or the Registration Rights Agreement unless such
consideration is offered to be paid and is paid to all Holders of the Notes
that consent, waive or agree to amend in the time frame set forth in the
solicitation documents relating to such consent, waiver or agreement.


 


Section 4.17.                             Additional Note Guarantees.


 


If, after the Issue Date, (a) the Company or
any Restricted Subsidiary shall acquire or create another Subsidiary (other
than a Subsidiary that is an Excluded Subsidiary), or (b) any Unrestricted
Subsidiary is Redesignated a Restricted Subsidiary, then, in each such case,
the Company shall cause such Restricted Subsidiary to promptly:


 


(1)                                  execute and
deliver to the Trustee and the Collateral Agent (a) a supplemental
indenture pursuant to which such Restricted Subsidiary shall unconditionally
guarantee all of the Company’s obligations under the Notes and this Indenture
and (b) execute and deliver to the Trustee joinders to the Collateral
Documents and/or additional 


 


81

















 


Collateral
Documents and effect all filings and other actions, in each case, necessary to
grant valid and perfected security interests in the Collateral of such
Restricted Subsidiary to secure the First Lien Obligations; and


 


(2)                                  deliver to the
Trustee and the Collateral Agent one or more opinions of counsel that such
supplemental indenture and Collateral Documents (a) have been duly
authorized, executed and delivered by such Restricted Subsidiary, (b) constitute
a valid and legally binding obligation of such Restricted Subsidiary in
accordance with its terms and (c) with respect to Collateral Documents,
that they create valid and perfected liens in the Collateral of such Restricted
Subsidiary.


 


Section 4.18.                             Limitation on Designation of
Unrestricted Subsidiaries.


 


(a)                                  The Company may
designate any Subsidiary (including any newly formed or newly acquired
Subsidiary) of the Company as an “Unrestricted Subsidiary” under this Indenture
(a “Designation”) only if:


 


(1)                                  no Default
shall have occurred and be continuing at the time of or after giving effect to
such Designation; and


 


(2)                                  the Company
would be permitted to make, at the time of such Designation, (x) a
Permitted Investment or (y) an Investment pursuant to Section 4.07(a),
in either case, in an amount (the “Designation Amount”)
equal to the Fair Market Value of the Company’s proportionate interest in such
Subsidiary on such date.


 


(b)                                 No Subsidiary
shall be Designated as an “Unrestricted Subsidiary” unless such Subsidiary:


 


(1)                                  has no
Indebtedness other than Non-Recourse Debt;


 


(2)                                  is not party to
any agreement, contract, arrangement or understanding with the Company or any
Restricted Subsidiary unless the terms of the agreement, contract, arrangement
or understanding are no less favorable to the Company or the Restricted Subsidiary
than those that might be obtained at the time from Persons who are not
Affiliates;


 


(3)                                  is a Person
with respect to which neither the Company nor any Restricted Subsidiary has any
direct or indirect obligation (x) to subscribe for additional Equity Interests
or (y) to maintain or preserve the Person’s financial condition or to
cause the 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 Restricted Subsidiary, except for any
guarantee given solely to support the pledge by the Company or any Restricted
Subsidiary of the Equity Interests of such Unrestricted Subsidiary, which
guarantee is not recourse to the Company or any Restricted Subsidiary.


 


If, at any time, any Unrestricted Subsidiary
fails to meet the preceding requirements as an Unrestricted Subsidiary, it
shall thereafter cease to be an Unrestricted Subsidiary for purposes of this 


 


82

















 


Indenture and any Indebtedness of such
Subsidiary and any Liens on assets of such Subsidiary shall be deemed to be
incurred by a Restricted Subsidiary at such time and, if the Indebtedness is
not permitted to be incurred under Section 4.09 or the Lien is not
permitted under Section 4.12, the Company shall be in default of such
section.


 


(c)                                  The Company may
redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Redesignation”) only if:


 


(1)                                  no Default
shall have occurred and be continuing at the time of and after giving effect to
such Redesignation; and


 


(2)                                  all Liens,
Indebtedness and Investments of such Unrestricted Subsidiary outstanding immediately
following such Redesignation would, if incurred or made at such time, have been
permitted to be incurred or made for all purposes of this Indenture.


 


(d)                                 All
Designations and Redesignations must be evidenced by resolutions of the Board
of Directors of the Company, delivered to the Trustee certifying compliance
with the foregoing provisions.


 


Section 4.19.                             Events of Loss.


 


(a)                                  In the event of an Event of Loss, the Company or the affected Restricted
Subsidiary of the Company, as the case may be, may within 360 days after such
Event of Loss apply the Net Loss Proceeds from such Event of Loss to the
rebuilding, repair, replacement or construction of improvements to the property
affected by such Event of Loss or to other assets useful in its business, with
no concurrent obligation to offer to purchase any of the Notes.


 


(b)                                 Any Net Loss Proceeds that are not reinvested as provided in subsection (a) of
this Section 4.19 will be deemed “Excess Loss Proceeds”; provided that a binding commitment made
within 360 days of the relevant Event of Loss shall be treated as a permitted
application of the Net Loss Proceeds from such Event of Loss, and provided  further,
that any Net Loss Proceeds subject to any such commitment not applied in
accordance with the foregoing within 90 days after the expiration of 360 days
from the relevant Event of Loss shall constitute Excess Loss Proceeds.


 


(c)                                  When the aggregate amount of Excess Loss Proceeds exceeds $15.0 million,
the Company will make an offer
(an “Event of Loss Offer”) to
repurchase from all Holders of the Notes and, if applicable, redeem (or make an
offer to do so) any First Lien Obligations the provisions of which require the
Company to redeem such Indebtedness with the proceeds from any Excess Loss
Proceeds (or offer to do so), in an aggregate principal amount of Notes and
such First Lien Obligations equal to the amount of such Excess Loss Proceeds as
follows:


 


(1)                                  The offer
price in any Event of Loss Offer will be equal to:  (i) the
Collateral Other Than After Acquired Collateral Net Proceeds Offered Price, in
the case of Excess Loss Proceeds relating to an Event of Loss involving
Collateral (other than After Acquired Collateral), or (ii)100% of the principal amount plus accrued and unpaid
interest 


 


83

















 


(including Additional Interest), if any, to the date of
purchase, in each other case, and, in any case shall be payable in cash.


 


(2)                                  If any
Excess Loss Proceeds remain after consummation of an Event of Loss Offer, the
Company may use such Excess Loss Proceeds for any purpose not otherwise
prohibited by this Indenture and the Collateral Documents and such remaining
amount shall not be added to any subsequent Excess Loss Proceeds for any
purpose under this Indenture; provided
that any remaining Excess Loss Proceeds shall remain subject to the Lien of the
Collateral Documents.


 


(3)                                  If the
aggregate principal amount of Notes tendered pursuant to an Event of Loss Offer
exceeds the Excess Loss Proceeds, the Trustee will select the Notes to be purchased on a pro
rata basis based on the principal
amount tendered in accordance with this Indenture.


 


(d)                                 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 such laws or regulations are
applicable in connection with the repurchase of the Notes pursuant to an Event
of Loss Offer.  To the extent that the
provisions of any applicable securities laws or regulations conflict with the
Event of Loss provisions of this Indenture, the Company will comply with the applicable securities laws and
regulations and shall not be deemed to have breached their obligations under
the Event of Loss provisions of this Indenture by virtue of such compliance.


 


Section 4.20.                             Limitation on Layering
Indebtedness.


 


The Company will not incur, and will not permit
Finance Corp. or any Restricted Subsidiary to, directly or indirectly, incur or
suffer to exist any Indebtedness that is contractually subordinated in right of
payment to any other Indebtedness of the Company or such Guarantor unless such
Indebtedness is also contractually subordinated in right of payment to the
Notes or the Note Guarantees of any Subsidiary Guarantor, on substantially
identical terms; provided, however,
that no Indebtedness will be deemed to be subordinated in right of payment to
any other Indebtedness of the Issuers or any Subsidiary Guarantor solely by
virtue of being unsecured or secured by a junior priority lien or by virtue of
the fact that the holders of such Indebtedness have entered into intercreditor
agreements or other arrangements giving one or more of such holders priority
over the other holders in the collateral held by them.


 


Section 4.21.                             Limitations on Sale and Leaseback
Transactions.


 


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, enter into any Sale and
Leaseback Transaction; provided that
the Company or any Restricted Subsidiary may enter into a Sale and Leaseback
Transaction if:


 


(1)                                  the Company or
such Restricted Subsidiary could have (a) incurred the Indebtedness attributable
to such Sale and Leaseback Transaction pursuant to Section 4.09 and (b) incurred
a Lien to secure such Indebtedness pursuant to Section 4.12;


 


84

















 


(2)                                  the gross cash
proceeds of such Sale and Leaseback Transaction are at least equal to the Fair
Market Value of the asset that is the subject of such Sale and Leaseback
Transaction; and


 


(3)                                  the transfer of
assets in such Sale and Leaseback Transaction is permitted by, and the Company
or the applicable Restricted Subsidiary applies the proceeds of such
transaction in accordance with Section 3.08 and Section 4.10.


 


Section 4.22.                             Limitations on Issuance or Sale
of Equity Interests of Restricted Subsidiaries.


 


The Company will not, and will not permit any
Restricted Subsidiary to, directly or indirectly, sell or issue any shares of
Equity Interests of any Restricted Subsidiary except (1) to the Company, a
Restricted Subsidiary or the minority stockholders of any Restricted
Subsidiary, on a pro  rata
basis, (2) to the extent such shares represent directors’ qualifying
shares or shares required by applicable law to be held by a Person other than
the Company or a Wholly Owned Restricted Subsidiary, (3) if immediately
after giving effect to such sale or issuance, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary, or (4) the Equity Interests
of such Restricted Subsidiary which are pledged to the Collateral Agent for the
benefit of the holders of the First Lien Obligations.


 


Section 4.23.                             Further Assurances.


 


The Company will, and will cause each of its
existing and future Restricted Subsidiaries to, execute and deliver such
additional instruments, certificates or documents, and take all such actions
as, in the good faith opinion of the Company, may be reasonably required from
time to time in order to:


 


(1)                                  carry out more
effectively this Indenture and the purposes of the Collateral Documents;


 


(2)                                  create, grant,
perfect and maintain the validity, effectiveness and priority of a first
priority fixed charge in favor of the Trustee on behalf of the Holders of the
Notes over any owned real property of the Company or any Restricted Subsidiary
(excluding real property underlying pipelines) with a fair market value in
excess of $10.0 million; provided that
owned real property of the Company or any Restricted Subsidiary (excluding real
property underlying pipelines) with a fair market value less than $10.0 million
will be subject to a floating charge; provided, further, that the aggregate value of all owned real property
(excluding real property underlying pipelines) not subject to a first priority
fixed charge in favor of the Trustee on behalf of the Holders of the Notes
shall not exceed $50.0 million;


 


(3)                                  create, grant,
perfect and maintain the validity, effectiveness and priority of any of the
Collateral Documents and the Liens created, or intended to be created, by the
Collateral Documents; and


 


85














 


(4)           ensure the
protection and enforcement of any of the rights granted or intended to be
granted to the Trustee under any other instrument executed in connection
therewith.


 


Section 4.24.          Limitations on Activities of Finance Corp.


 


Finance Corp. shall not hold any material assets,
become liable for any material obligations, engage in any trade or business, or
conduct any business activity, other than (1) the issuance of its Equity
Interests to the Company or any Wholly Owned Restricted Subsidiary of the Company,
(2) the incurrence of Indebtedness as a co-obligor or guarantor, as the
case may be, of the Notes, the Liquidity Facilities and any other Indebtedness
that is permitted to be incurred by the Company pursuant to Section 4.09; provided that the net proceeds of such Indebtedness are not
retained by Finance Corp., and (3) activities incidental thereto.  Neither the Company nor any Restricted
Subsidiary shall engage in any transactions with Finance Corp. in violation of
the immediately preceding sentence.


 


Section 4.25.          Additional Amounts.


 


(a)           All payments made by the
Issuers under or with respect to the Notes will be made free and clear of and
without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of any Taxing Authority in any
jurisdiction in which an Issuer is organized or is otherwise resident for tax
purposes or any jurisdiction from or through which payment is made (each a “Relevant Taxing Jurisdiction”), unless an Issuer is required
to withhold or deduct Taxes by law or by the interpretation or administration
thereof.  If an Issuer is required to
withhold or deduct any amount for or on account of Taxes imposed by a Relevant
Taxing Jurisdiction, from any payment made under or with respect to the Notes,
such Issuer will pay as additional interest such additional amounts (“Additional Amounts”) as may be necessary so that the net
amount received by each Holder of Notes (including Additional Amounts) after
such withholding or deduction will equal the amount the Holder would have received
if such Taxes had not been withheld or deducted; provided,
however, that no Additional Amounts will
be payable with respect to any Tax that would not have been imposed, payable or
due:


 


(1)           but for the
Holder or beneficial owner of Notes not dealing at arm’s length with the Issuers
(for purposes of the Income Tax Act
(Canada)) at the time of the making of such payment;


 


(2)           but for the
existence of any present or former connection between the Holder (or the
beneficial owner of, or person ultimately entitled to obtain an interest in,
such Notes, including a fiduciary, settler, beneficiary, member, partner,
shareholder or other equity interest owner of, or possessor of power over, such
Holder or beneficial owner, if such Holder or beneficial owner is an estate,
trust, partnership, limited liability company, corporation or other entity) and
the Relevant Taxing Jurisdiction (including being a citizen or resident or
national of, or carrying on a business or maintaining a permanent establishment
in, or being physically present in, the Relevant Taxing Jurisdiction) other
than the mere holding of the Notes or enforcement of rights thereunder or the receipt
of payments in respect thereof;


 


86





















 


(3)           but for the
failure by the Holder to satisfy any certification, identification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or connection with the Relevant Taxing Jurisdiction
or arm’s-length relationship with the Issuers of the Holder or beneficial owner
or otherwise establishing the right to the benefit of an exemption from, or
reduction in the rate of, withholding or deduction, if (a) such compliance
is required by law, regulation, administrative practice or an applicable treaty
of the Relevant Taxing Jurisdiction as a precondition to exemption from, or a
reduction in the rate of deduction of withholding of, such Taxes and (b) the
Issuers have provided the Trustee with 30 days’ prior written notice of such requirement;
or


 


(4)           if the
presentation of Notes (where presentation is required) for payment had occurred
within 30 days after the date such payment was due and payable or was duly
provided for, whichever is later.


 


(b)           Additional Amounts will not
be payable if the beneficial owner of, or person ultimately entitled to obtain
an interest in, such Notes is not the sole beneficial owner of such payments,
or is a fiduciary or partnership (including any entity or arrangement treated
as a partnership by the Relevant Taxing Jurisdiction), to the extent that any
beneficial owner, beneficiary or settler with respect to such fiduciary or any
partner or member of such partnership would not have been entitled to such
Additional Amounts with respect to such payments had such beneficial owner,
beneficiary, settler, partner or member received directly its beneficial or
distributive shares of such payments.  In
addition, Additional Amounts will not be payable with respect to (i) any
Tax which is payable otherwise than by withholding from payments of, or in
respect of principal of, or any interest on, the Notes, (ii) any
withholding or deduction that relates to any estate, inheritance, gift or
similar tax, duty, assessment or governmental charge, (iii) any withholding
or deduction imposed on a payment to an individual and required to be made
pursuant to European Union Directive on the taxation of savings income which
was adopted by the ECOFIN Council (the Council of EU Finance and Economic
Ministers), or any law implementing or complying with, or introduced to conform
to, such directive, or pursuant to related measures entered into on a
reciprocal basis between member states of the European Union and certain
non-European Union countries and dependent or associated territories and (iv) any
Tax imposed or levied by, or on behalf of, the United States of America or any
State or other political subdivision thereof.


 


(c)           Whenever in this Indenture
there is mentioned, in any context, the payment of amounts based upon the
principal amount of the Notes or of principal, interest or of any other amount
payable under or with respect to any of the Notes, such mention shall be deemed
to include mention of the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.


 


(d)           Upon request, the Issuers
will provide the Trustee with documentation satisfactory to the Trustee
evidencing the payment of Additional Amounts.


 


(e)           The Issuers will pay any
present or future stamp, court or documentary taxes, or any other excise or
property taxes, charges or similar levies which arise in a Relevant Taxing Jurisdiction
from the execution, delivery or registration of the Notes and any such taxes, charges
or similar levies imposed by any jurisdiction resulting from, or required to be
paid in connection 


 


87





















 


with, the enforcement of the Notes or any
other such document or instrument following the occurrence of any Event of
Default with respect to the Notes.


 


(f)            At least 10 days prior to
the first Interest Payment Date, and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the relevant Officer’s Certificate,
the Company will furnish the Trustee and the Company’s principal Paying Agent
or Paying Agents, if other than the Trustee, with an Officer’s Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Notes or under the
related Guarantee shall be made to Holders of the Notes without withholding for
or on account of any present or future Taxes imposed or levied by or on behalf
of any Relevant Taxing Jurisdiction.  If
any such withholding shall be required, then such Officer’s Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders and the Company or the Guarantor (only if a payment under the
Guarantee is then due in respect of such Securities), as the case may be, will
pay to the Trustee or such Paying Agent or Paying Agents the Additional Amounts
required by this Section 4.25.


 


Each of the Issuers and the Guarantors covenants to
indemnify each of the Trustee and any Paying Agent for, and to hold each of
them harmless against, any loss, liability or expense arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officer’s Certificate furnished pursuant to this Section 4.25.


 


Section 4.26.               Information
Regarding Collateral.


 


The Issuer and each Guarantor shall give the
Collateral Agent and the Trustee written notice promptly (and in any event
within ten Business Days) of any change (i) in the legal name of any
Issuer or Guarantor, (ii) in the location of the chief executive office of
any Issuer or Guarantor, (iii) in identity or organizational structure of
any Issuer or Guarantor, (iv) in Federal Taxpayer Identification Number or
organizational identification number, if any, of any Issuer or Guarantor or (v) in
the jurisdiction of organization (in each case, including by merging with or
into any other entity, reorganizing, dissolving, liquidating, reorganizing or
organizing in any other jurisdiction) of any Issuer or Guarantor.  Each Issuer and each Guarantor also agrees to
promptly notify the Collateral Agent of any new location in which it maintains
books or records relating to Collateral with a fair market value, individually
or in the aggregate, in excess of $2 million owned by it or any new office or
facility at which Collateral with a fair market value, individually or in the
aggregate, in excess of $2 million is located. 
If any Person asserts any Lien, encumbrance or adverse claim against any
investment property that forms part of the Collateral (other than pursuant to
the Security Agreements or clauses (1) or (5) of the definition of
Permitted Liens), the Company will promptly notify the Collateral Agent.  The Company will notify the Collateral Agent
immediately upon becoming aware of any change in an “issuer’s jurisdiction” in
respect of any uncertificated Equity Interests with a fair market value in
excess of $1.0 million that are Collateral or any change in a “securities
intermediary’s jurisdiction” in respect of 
any security entitlements, financial assets or securities accounts with
a fair market value in excess of $1.0 million that are Collateral.  In each case referred to in this Section 4.26,
each Issuer and each Guarantor shall make such filings and take such action as
shall be necessary to perfect and continue the perfection of the security
interest in the Collateral in favor of the Collateral Agent 


 


88

















 


on behalf of the Holders of
the Notes and the Collateral Agent and the Trustee shall have no obligation to
do so.


 


Section 4.27.          Maintenance of Fixed Charges on Rolling Stock;
Limitations on Operating Leases of Rolling Stock.


 


(a)           Commencing ninety days
following the Issue Date, the Company shall, and shall cause each of the
Subsidiary Guarantors to:


 


(i)            with respect to Rolling
Stock located in Canada, register or cause to be registered financing
statements or financing change statements containing the information required
to register such Rolling Stock by their respective Serial Numbers under the
PPSA of the jurisdiction(s) which govern the validity and perfection of
security interests in such Collateral, and


 


(ii)           with respect to Rolling
Stock located in the United States, obtain and maintain a perfected Lien on
Rolling Stock by noting the Collateral Agent’s Lien on the certificate of title
issued by the applicable State of the United States or the District of Columbia
in compliance with applicable law,


 


with respect to a quantity of Rolling Stock
not less than the Requisite Percentage of Rolling Stock included in the
Collateral referred to in clauses (i) and (ii) on an aggregate basis.


 


(b)           The Company and its
Restricted Subsidiaries will not enter into operating leases for the
replacement of Rolling Stock that constitutes Collateral (other than After
Acquired Collateral) if the Fair Market Value of Rolling Stock to be so
replaced would exceed at any time outstanding the greater of (a) $25.0
million and (b) 3.0% of Consolidated Net Tangible Assets.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01.          Merger, Consolidation, Etc.


 


(a)           The Company will not,
directly or indirectly, in a single transaction or a series of related
transactions, (1) consolidate, amalgamate or merge with or into another
Person, or sell, transfer, convey or otherwise dispose of or assign all or
substantially all of the assets of the Company or the Company and the
Restricted Subsidiaries (taken as a whole) or (2) adopt a Plan of Liquidation
unless, in either case:


 


(1)           either:


 


(a)           the Company will be the surviving or continuing
Person; or


 


(b)           the Person formed by or surviving such
consolidation, amalgamation or merger or to which such sale, transfer,
conveyance or other disposition or assignment shall be made (or, in the case of
a Plan of Liquidation, any Person to which assets are transferred)
(collectively, the “Successor”) is
a corporation, limited liability company, unlimited liability corporation or
limited partnership 


 


89

















 


organized and existing under
the laws of any State of the United States of America or the District of
Columbia or of Canada or any Province thereof, and the Successor expressly
assumes, by supplemental indenture or other agreements or other instruments,
all of the obligations of the Company under the Notes, this Indenture, the
Collateral Documents, the Intercreditor Agreement and the Registration Rights
Agreement;


 


(2)           immediately
prior to and immediately after giving effect to such transaction and the
assumption of or the continuation of liability for the obligations as set forth
in Section 5.01(a)(1)(b) and the incurrence of any Indebtedness to be
incurred in connection therewith, and the use of any net proceeds therefrom on
a pro forma basis, no Default shall have occurred and be continuing;


 


(3)           immediately
after and giving effect to such transaction and the assumption of or the
continuation of liability for the obligations set forth in Section 5.01(a)(1)(b) and
the incurrence of any Indebtedness to be incurred in connection therewith, and
the use of any net proceeds therefrom on a pro forma basis, the Company or the
Successor, as the case may be, could incur $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception;


 


(4)           the Successor
promptly causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded in such jurisdictions as may be required
by applicable law to preserve and protect the Liens of the Collateral Documents
on the Collateral owned by or transferred to the Successor, together with such
financing statements as may be required to perfect any security interests in
such Collateral which may be perfected by filing of a financing statement under
the Uniform Commercial Code of the relevant states or the PPSA of the relevant
provinces or territories;


 


(5)           the Issuers
shall have delivered to the Trustee an Officer’s Certificate stating that such
consolidation, merger, amalgamation or transfer and such amendments, supplements
or other instruments, if any, comply with this Indenture and that such amendments,
supplements or other instruments, relating to the Collateral Documents, if any,
comply with this Indenture and an Officer’s Certificate and an Opinion of
Counsel in a customary form including customary qualifications to the effect
that such amendments, supplements or other instruments are enforceable;


 


(6)           the Collateral
owned by or transferred to the Successor shall:


 


(a)           continue to constitute Collateral under this
Indenture and the Collateral Documents,


 


(b)           be subject to the Liens in favor of the Collateral
Agent for its benefit and the benefit of the holders of the First Lien
Obligations, and


 


(c)           not be subject to any Lien other than Permitted
Liens; and


 


90

















 


(7)           the property
and assets of the Person which is merged or consolidated with or into the
Successor, to the extent that they are property or assets of the types that
would constitute Collateral under the Collateral Documents, shall be treated as
after-acquired property and the Successor shall take such action as may be
reasonably necessary to cause such property and assets to be made subject to
the Lien of the Collateral Documents in the manner and to the extent required in
this Indenture.


 


For purposes of this Section 5.01(a),
any Indebtedness of the Successor which was not Indebtedness of the Company
immediately prior to the transaction shall be deemed to have been incurred in
connection with such transaction.


 


This Section 5.01(a) will not apply to any
sale, transfer, conveyance or other disposition of assets between or among the
Company and its Restricted Subsidiaries or of Liquidity Collateral pursuant to
any Liquidity Facility.  Section 5.01(a)(2) and
Section 5.01(a)(3) will not apply to (1) any merger,
amalgamation or consolidation of the Company with or into one of its Restricted
Subsidiaries for any purpose or (2) with or into an Affiliate solely for
the purpose of reincorporating the Company in another jurisdiction.


 


(b)           Parent will not, directly or
indirectly, in a single transaction or a series of related transactions, (a) consolidate,
amalgamate or merge with or into another Person, or sell, transfer, convey or
otherwise dispose of or assign all or substantially all of the assets of Parent
and its Subsidiaries (taken as a whole) or (b) adopt a Plan of Liquidation
unless, in either case:


 


(1)           either:


 


(a)           Parent will be the surviving or continuing Person;
or


 


(b)           the Person formed by or surviving such
consolidation, amalgamation or merger or to which such sale, transfer,
conveyance or other disposition or assignment shall be made (or, in the case of
a Plan of Liquidation, any Person to which assets are transferred)
(collectively, the “Parent Successor”)
continues to be liable for or expressly assumes, by supplemental indenture or
other agreements or other instruments, all of the obligations of Parent under
its Note Guarantee, this Indenture, the Collateral Documents, the Intercreditor
Agreement and the Registration Rights Agreement; and


 


(2)           immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing;


 


(3)           the Parent
Successor causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded in such jurisdictions as may be required
by applicable law to preserve and protect the Liens of the Collateral Documents
on the Collateral owned by or transferred to the Parent Successor, together
with such financing statements as may be required to perfect any security
interests in such Collateral which may be perfected by filing of a financing
statement under the Uniform Commercial Code of the relevant states or the PPSA
of the relevant provinces;


 


91





















 


(4)           the Issuers
shall have delivered to the Trustee an Officer’s Certificate stating that such
consolidation, merger, amalgamation or transfer and such amendments, supplements
or other instruments, if any, comply with this Indenture and that such amendments,
supplements or other instruments, relating to the Collateral Documents, if any,
comply with this Indenture and an Officer’s Certificate and an Opinion of
Counsel in a customary form including customary qualifications to the effect
that such amendments, supplements or other instruments are enforceable;


 


(5)           the Collateral
owned by or transferred to the Parent Successor shall:


 


(a)           continue to constitute Collateral under this
Indenture and the Collateral Documents,


 


(b)           be subject to the Liens in favor of the Collateral
Agent for its benefit and the benefit of the holders of the First Lien
Obligations, and


 


(c)           not be subject to any Lien other than Permitted
Liens; and


 


(6)           the property
and assets of the Person which is merged, amalgamated or consolidated with or
into the Parent Successor, to the extent that they are property or assets of
the types which would constitute Collateral under the Collateral Documents,
shall be treated as after-acquired property and the Parent Successor shall take
such action as may be reasonably necessary to cause such property and assets to
be made subject to the Lien of the Collateral Documents in the manner and to
the extent required in this Indenture.


 


(c)           Except as set forth in Section 10.04,
no Guarantor (other than Parent) may consolidate with, amalgamate with or merge
with or into (whether or not such Guarantor is the surviving Person) another Person,
unless:


 


(1)           either:


 


(a)           such Guarantor will be the surviving or continuing
Person; or


 


(b)           the Person formed by or surviving any such
consolidation, amalgamation or merger (the “Successor Guarantor”)
is another Guarantor or assumes or continues to be liable for, by supplemental
indenture or other agreements or other instruments, all of the obligations of
such Guarantor under the Note Guarantee of such Guarantor, this Indenture, the
Collateral Documents, the Intercreditor Agreement and the Registration Rights
Agreement;


 


(2)           immediately
after giving effect to such transaction, no Default shall have occurred and be
continuing;


 


(3)           the Successor
Guarantor, if other than such Guarantor, expressly assumes all the obligations
of such Guarantor under this Indenture and such Guarantor’s related Note
Guarantee pursuant to a supplemental indenture or other documents or
instruments;


 


92





















 


(4)           the Successor
Guarantor causes such amendments, supplements or other instruments to be
executed, delivered, filed and recorded in such jurisdictions as may be
required by applicable law to preserve and protect the Liens of the Collateral
Documents on the Collateral owned by or transferred to the Successor Guarantor,
together with such financing statements as may be required to perfect any
security interests in such Collateral which may be perfected by the filing of a
financing statement under the Uniform Commercial Code of the relevant states or
the PPSA of the relevant provinces;


 


(5)           the Collateral
owned by or transferred to the Successor Guarantor shall:


 


(a)           continue to constitute Collateral under this Indenture
and the Collateral Documents,


 


(b)           be subject to the Liens in favor of each of the
Collateral Agent for its benefit and the benefit of the holders of the First
Lien Obligations, and


 


(c)           not be subject to any Lien other than Permitted
Liens;


 


(6)           the property
and assets of the Person which is merged, amalgamated or consolidated with or
into the Successor Guarantor, to the extent that they are property or assets of
the types which would constitute Collateral under the Collateral Documents,
shall be treated as after-acquired property and the Successor Guarantor shall
take such action as may be reasonably necessary to cause such property and
assets to be made subject to the Liens of the Collateral Documents in the
manner and to the extent required in this Indenture; and


 


(7)           the Issuers
shall have delivered to the Trustee an Officer’s Certificate stating that such
consolidation, merger, amalgamation or transfer and such amendments,
supplements or other instruments, if any, comply with this Indenture and that
such amendments, supplements or other instruments, relating to the Collateral
Documents, if any, comply with this Indenture and an Officer’s Certificate and
an Opinion of Counsel in a customary form including customary qualifications to
the effect that such amendments, supplements or other instruments are enforceable.


 


For purposes of the foregoing, the transfer (by
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Equity Interests of which constitute all or
substantially all of the properties and assets of the Company, will be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.


 


Section 5.02.          Successor Corporation Substituted.


 


Upon any consolidation, combination, amalgamation or
merger of the Company or a Guarantor, or any transfer or conveyance of all or
substantially all of the assets of the Company in accordance with the foregoing,
in which the Company or such Guarantor is not the continuing obligor under the
Notes or its Note Guarantee, the surviving entity formed by such consolidation
or into which the Company or such Guarantor is merged or the Person to which
the conveyance 


 


93

















 


or transfer is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor under this Indenture, the Notes and the Note
Guarantees with the same effect as if such surviving entity had been named
therein as the Company or such Guarantor and, except in the case of a lease,
the Company or such Guarantor, as the case may be, will be released from the
obligation to pay the principal of and interest on the Notes or in respect of
its Note Guarantee, as the case may be, and all of the Company’s or such Guarantor’s
other obligations and covenants under the Notes, this Indenture and its Note
Guarantees, if applicable, in accordance with the provisions of this Indenture.


 


Notwithstanding the foregoing, any Restricted
Subsidiary may consolidate with, amalgamate or merge with or into or convey or
transfer, in one transaction or a series of transactions, all or substantially
all of its assets to the Company or another Restricted Subsidiary.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01.          Events of Default.


 


Each of the following is an “Event of
Default”:


 


(1)           failure by the
Issuers to pay interest on any of the Notes when it becomes due and payable and
the continuance of any such failure for 30 days;


 


(2)           failure by the
Issuers to pay the principal on any of the Notes when it becomes due and
payable, whether at Stated Maturity, upon redemption, upon purchase, upon
acceleration or otherwise;


 


(3)           failure by the
Company to comply with the provisions of Sections 4.15 or 5.01;


 


(4)           failure by an
Issuer or a Guarantor to comply with any other agreement or covenant in this
Indenture or the Collateral Documents and continuance of this failure for 60
days after written notice of the failure has been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% of the
aggregate principal amount of the Notes then outstanding, specifying such
failure and requiring it to be remedied and stating that such notice is a “Notice
of Default” hereunder;


 


(5)           default under
any mortgage, indenture or other instrument or agreement under which there may
be issued or by which there may be secured or evidenced Indebtedness for money
borrowed by the Company or any Restricted Subsidiary (or the payment of which
is guaranteed by the Company or any Restricted Subsidiary), whether such
Indebtedness now exists or is incurred after the Issue Date, which default:


 


(a)           is caused by a failure to pay at final maturity
principal on such Indebtedness within the applicable express grace period and
any extensions thereof,


 


(b)           results in the acceleration of such Indebtedness
prior to its express final maturity, or


 


94

















 


(c)           results in the commencement of judicial proceedings
to foreclose upon, or to exercise remedies under applicable law or applicable
security documents to take ownership of, the assets securing such Indebtedness,
and


 


in each case, the principal amount of such
Indebtedness, together with any other Indebtedness with respect to which an
event described in clause (a), (b) or (c) has occurred and is continuing,
aggregates $15.0 million or more;


 


(6)           one or more
final judgments or orders that exceed $15.0 million in the aggregate (net of
amounts covered by insurance or bonded), except as covered by an effective
indemnity, for the payment of money have been entered by a court or courts of
competent jurisdiction against the Company or any Restricted Subsidiary and such
judgment or judgments have not been satisfied, stayed, annulled or rescinded
within 60 days of being entered;


 


(7)           the Company or
any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy
Law:


 


(a)           commences a voluntary case or proceeding,


 


(b)           applies for or consents to the entry of an order for
relief against it in an involuntary case or proceeding,


 


(c)           applies for or consents to the appointment of a
Custodian of it or for all or substantially all of its assets, or


 


(d)           makes a general assignment for the benefit of its
creditors;


 


(8)           a court of
competent jurisdiction enters an order or decree under any Bankruptcy Law that:


 


(a)           is for relief against the Company or any Significant
Subsidiary as debtor in an involuntary case or proceeding,


 


(b)           appoints a Custodian of the Company or any
Significant Subsidiary or a Custodian for all or substantially all of the
assets of the Company or any Significant Subsidiary, or


 


(c)           orders the liquidation of the Company or any
Significant Subsidiary,


 


and the order or decree remains unstayed and in
effect for 60 days;


 


(9)           any Note
Guarantee of any Significant Subsidiary ceases to be in full force and effect
(other than in accordance with the terms of such Note Guarantee and this Indenture)
or is declared null and void and unenforceable or found to be invalid or any
Guarantor denies in writing its liability under its Note Guarantee (other than
by reason of 


 


95





















 


release
of a Guarantor from its Note Guarantee in accordance with the terms of this Indenture
and the Note Guarantee);


 


(10)         any written
repudiation or disaffirmation by an Issuer or any Guarantor of any of its obligations
under the Collateral Documents; or


 


(11)         with respect to
any Collateral (x) subject to a fixed charge (other than Rolling Stock) or
(y) having a fair market value in excess of $20.0 million, individually or
in the aggregate:


 


(a)           the security interest under the Collateral
Documents, at any time, ceases to be in full force and effect for any reason
other than in accordance with the terms of this Indenture, the Collateral
Documents and the Intercreditor Agreement,


 


(b)           any security interest created thereunder or under
this Indenture is declared invalid or unenforceable by a court of competent
jurisdiction, or


 


(c)           any Issuer or any Guarantor asserts, in any pleading
in any court of competent jurisdiction, that any such security interest is
invalid and unenforceable.


 


Section 6.02.          Acceleration.


 


In the case of an Event of Default specified in
clause (7) or (8) of Section 6.01 hereof, with respect to the
Company, all outstanding Notes will become due and payable immediately without
further action or notice.  If any other
Event of Default occurs and is continuing, the Trustee, by written notice to
the Company, or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding by written notice to the Company and the Trustee,
may declare all amounts owing under the Notes to be due and payable.  Upon such declaration of acceleration, the
aggregate principal of and accrued and unpaid interest on the outstanding Notes
shall immediately become due and payable; provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Holders of a majority in aggregate principal
amount of the Notes then outstanding may, on behalf of all of the Holders,
rescind and annul such acceleration and its consequences, if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium or Additional Interest,
if any, that has become due solely because of the acceleration) have been cured
or waived.


 


In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Notes pursuant to Section 3.07, an equivalent premium will also become and
be immediately due and payable to the extent permitted by law upon the
acceleration of the Notes.


 


96

















 


Section 6.03.          Other Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee and the Collateral Agent, as applicable, may pursue any available
remedy to collect the payment of principal, premium and Additional Interest, if
any, and interest on the Notes or to enforce the performance of any provision
of the Notes, this Indenture or the Collateral Documents.


 


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, the Collateral Agent 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 6.04.          Waiver of Past Defaults.


 


Holders of not less than a majority in aggregate 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, premium and Additional Interest, if any, or
interest on, the Notes (including in connection with an offer to purchase); provided, however, that the
Holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related
payment default that resulted from such acceleration.  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 6.05.          Control by Majority.


 


Subject to the terms of the Collateral Documents,
holders of a majority in aggregate 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 the Collateral Agent or exercising
any trust or power conferred on it. 
However, the Trustee or the Collateral Agent may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee or the
Collateral Agent determines may be unduly prejudicial to the rights of other
Holders of Notes or that may involve the Trustee or the Collateral Agent in
personal liability.


 


Section 6.06.          Limitation on Suits.


 


A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:


 


(1)           such Holder has
previously given the Trustee notice that an Event of Default is continuing;


 


(2)           Holders of at
least 25% in aggregate principal amount of the then outstanding Notes have requested
in writing that the Trustee pursue the remedy;


 


97














 


(3)                                  such Holder or
Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense;


 


(4)                                  the Trustee has
not complied with such request within 60 days after receipt of the request and
the offer of security or indemnity; and


 


(5)                                  Holders of a
majority in aggregate principal amount of the then outstanding Notes have not
given the Trustee a direction inconsistent with such request, within such
60-day period.


 


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 6.07.                             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,
premium and Additional Interest, 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 6.08.                             Collection
Suit by Trustee.


 


If an Event of Default specified in Section 6.01(1) or
(2) hereof 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
for the whole amount of principal of, premium and Additional Interest, 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 6.09.                             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), its creditors or
its 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 7.07 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 7.07
hereof out of the estate in any such proceeding, shall be denied for any
reason, payment of the same 


 


98

















 


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 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 6.10.                             Priorities.


 


Subject to the provisions of the Collateral
Documents, if the Trustee or the Collateral Agent collects any money pursuant
to this Article 6, or any money or other property is distributed or distributable
in respect of the Company’s obligations under this Indenture after an Event of
Default, such monies and property shall be paid in the following order:


 


First:  to the Trustee and the Collateral Agent
(including any predecessor), their agents and attorneys for amounts due under Section 7.07
and 8.02(e) hereof, and to the Collateral Agent including payment of all
compensation, expenses and liabilities incurred, and all advances made, by the
Trustee and the Collateral Agent and the costs and expenses of collection;


 


Second:  to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Additional Interest, 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 and Additional
Interest, 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 6.10.


 


Section 6.11.                             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 6.11
does not apply to a suit by the Trustee, a suit by a Holder of a Note pursuant
to Section 6.07 hereof, or a suit by Holders of more than 10% in aggregate
principal amount of the then outstanding Notes.


 


99

















 


ARTICLE 7

TRUSTEE


 


Section 7.01.                                             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 their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.


 


(b)                                 Except during
the continuance of an Event of Default:


 


(1)                                  the duties of
the Trustee will 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


 


(2)                                  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 be under a duty to examine the certificates and opinions required
to be delivered to it by this Indenture to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts,
statements, opinions, or conclusions therein).


 


(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:


 


(1)                                  this paragraph
does not limit the effect of paragraphs (b) or (e) of this Section 7.01;


 


(2)                                  the Trustee
will 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


 


(3)                                  the Trustee
will 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 6.05
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 this Section 7.01.


 


(e)                                  Anything herein
to the contrary notwithstanding, no provision of this Indenture or of the
Collateral Documents will require the Trustee to expend or risk its own funds
or incur any liability.  The Trustee will
be under no obligation to exercise any of its rights or powers under this
Indenture at the request of any Holders, unless such Holder has offered to the
Trustee security and indemnity satisfactory to it against any loss, liability
or expense.


 


100

















 


(f)                                    The Trustee
will not be liable for interest on, or be required to invest, any money
received by it except as the Trustee may agree in writing with the
Company.  Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.


 


(g)                                 No provision of
this Indenture or the Collateral Documents shall be deemed to impose any duty
or obligation on the Trustee or the Collateral Agent to perform any act or
acts, receive or obtain any interest in property or exercise any interest in
property, or exercise any right, power, duty or obligation conferred or imposed
on it in any jurisdiction in which it shall be illegal, or in which the Trustee
of the Collateral Agent shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts, to receive or obtain any such
interest in property or to exercise any such right, power, duty or obligation;
and no permissive or discretionary power or authority available to the Trustee
or the Collateral Agent shall be construed to be a duty.


 


Section 7.02.                             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 Officer’s Certificate
or an Opinion of Counsel or both.  The
Trustee will not be liable for any action it takes or omits to take in good
faith in reliance on such Officer’s Certificate or Opinion of Counsel.  The Trustee may consult with counsel of its
selection and the advice of such counsel or any Opinion of Counsel will 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.


 


(c)                                  The Trustee may
act through its attorneys and agents and will not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


(d)                                 The Trustee
will not be liable for any action it takes, suffers to exist 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.


 


(e)                                  Unless
otherwise specifically provided in this Indenture, any demand, request, direction
or notice from either of the Issuers will be sufficient if signed by an Officer
of the relevant Issuer.


 


(f)                                    The Trustee
will 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 Holders have offered to the Trustee indemnity or security satisfactory to
the Trustee against the costs, losses, liabilities and expenses that might be
incurred by it in compliance with such request or direction.


 


(g)                                 Anything in
this Indenture notwithstanding, in no event shall the Trustee be responsible or
liable for special, indirect, punitive or consequential loss or damage of any
kind 


 


101

















 


whatsoever (including, but not limited to,
loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;


 


(h)                                 The Trustee
shall not be deemed to have notice or be charged with knowledge of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of such Default or Event of Default is
received by the Trustee at the Corporate Trust Office of the Trustee, from an
Issuer, any Guarantor or any Holder, and such notice references the Notes and
this Indenture.


 


(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 each agent (including each Agent), custodian and other Person employed to
act hereunder.


 


(j)                                     The Trustee may
request that the Company deliver an Officer’s Certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture or any Collateral Document.


 


(k)                                  The Trustee
shall not be responsible or liable for any failure or delay in the performance
of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation,
acts of God; earthquakes; fire; flood; terrorism; wars and other military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities,
computer (hardware or software) or communication services; accidents; labor
disputes; acts of civil or military authority and governmental action.


 


(l)                                     The permissive
right of the Trustee to take or refrain from taking action hereunder shall not
be construed as a duty; and


 


(m)                               The Trustee
shall not be required to give any bond or surety in respect of the performance
of its powers and duties hereunder.


 


Section 7.03.                             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
Company 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) it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee (if this Indenture has been qualified under
the TIA) or resign.  Any Agent may do the
same with like rights and duties.  The
Trustee is also subject to Sections 7.10 and 7.11 hereof.


 


Section 7.04.                             Trustee’s
Disclaimer.


 


The Trustee will 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 the Issuers’ use of the proceeds from the Notes
or any money paid to the Issuers or upon the Issuers’ direction under any
provision of this Indenture, it will not be responsible for the use or
application of any money 


 


102

















 


received by any Paying Agent
other than the Trustee, and it will 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 7.05.                             Notice
of Defaults.


 


If a Default or Event of Default occurs and is
continuing and if it is actually known to a Responsible Officer of the Trustee,
the Trustee will 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, premium or Additional Interest, if any, or interest on, any Note,
or a Default in complying with Section 5.01 the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Notes.


 


Section 7.06.                             Reports
by Trustee to Holders of the Notes.


 


(a)                                  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 will
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 will comply with TIA § 313(b)(2).  The Trustee will also transmit by mail all
reports as required by TIA § 313(c).


 


(b)                                 A copy of each
report at the time of its mailing to the Holders of Notes will be mailed by the
Trustee to the Company and filed by the Trustee with the SEC and each stock exchange
on which the Notes are listed in accordance with TIA § 313(d).  The Company will promptly notify the Trustee
when the Notes are listed on or delisted from any stock exchange.


 


Section 7.07.                             Compensation
and Indemnity.


 


(a)                                  The Issuers
will pay to the Trustee from time to time such reasonable compensation for its
acceptance of this Indenture and services hereunder and related hereto as shall
be agreed in writing by the Issuers and the Trustee.  The Trustee’s compensation will not be
limited by any law on compensation of a trustee of an express trust.  The Issuers will 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 will include the reasonable
compensation, disbursements and expenses of the Trustee’s agents and counsel.


 


(b)                                 The Issuers and
the Guarantors will indemnify the Trustee and any predecessor Trustee, separate
trustee and co-trustees and their respective officers, agents, directors and employees
(each an “Indemnitee”) for, and hold them harmless
against, any and all losses, liabilities, damages, claims or expenses,
including reasonable attorneys’ fees and expenses and taxes (other than those
based upon, measured by or determined by the income of the Trustee) incurred by
it arising out of or in connection with this Indenture, the Notes, the
Collateral Documents, the Intercreditor Agreement and the transactions contemplated
thereby, including 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 7.07) and defending



 


103

















 


itself against any claim (whether asserted by
the Issuers, the Guarantors, 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, damage, claim or
expense may be attributable to an Indemnitee’s negligence or bad faith.  The Trustee will notify the Company promptly
of any claim for which it may seek indemnity. 
Failure by the Trustee to so notify the Company will not relieve the
Issuers or any of the Guarantors of their obligations hereunder.  The Issuers or such Guarantor will defend the
claim and the Trustee will cooperate in the defense.  The Trustee may have separate counsel and the
Issuers will pay the reasonable fees and expenses of such counsel.  Neither the Issuers nor any Guarantor need
pay for any settlement made without its consent, which consent will not be unreasonably
withheld.


 


Without limiting the
generality of the foregoing, the Issuers and the Guarantors agree to
indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses,
including reasonable counsel or consultant fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) any Environmental Claim to the
extent related in any way to the Collateral or any Issuer or Guarantor or
Affiliate of any or (ii) any actual or alleged presence, Release or
threatened Release of Hazardous Materials at, under, on or from any real
property, any property owned, leased or operated by any predecessor of any
Issuer or any Guarantor, or Affiliate of any, or, to the extent related in any
way to an Issuer or any Guarantor, or Affiliate or any, any property at which
any Issuer or Guarantor or Affiliate of any has sent Hazardous Materials for
treatment, storage or disposal; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses result from the
gross negligence or willful misconduct of such Indemnitee.  For the purposes of this paragraph, the
following terms shall have the following meanings:


 


“Environment”
means ambient and indoor air, surface water and groundwater (including potable
water, navigable water and
wetlands), the land surface or subsurface strata or sediment, natural resources
such as flora and fauna or as otherwise defined in any Environmental Law.


 


“Environmental
Claim” means any and all actions, suits, demands, demand letters, claims,
Liens, notices of non-compliance or violation, notices of liability or
potential liability, investigations, proceedings, consent orders or consent agreements
relating in any way to any Environmental Law or the release of or human
exposure to any Hazardous Material.


 


“Environmental
Law” means, collectively, all United States federal, state or local laws,
ordinances, regulations, rules, codes, orders, judgments or other requirements
or rules of law, including common law, that relate to (a) the
prevention, abatement or elimination of pollution, or the protection of the
Environment, natural resources or human health (to the extent relating to
exposure to Hazardous Materials), or natural resource damages, and (b) the
use, generation, handling, treatment, storage, disposal, Release,
transportation or regulation of, or exposure to, Hazardous Materials, including
the Comprehensive Environmental Response Compensation and Liability Act, 42
U.S.C. §§ 9601 et seq., the Endangered Species Act, 16 U.S.C.
§§ 1531 et seq., the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.,
the Clean Air Act, 42 U.S.C. §§ 7401 et seq., the Clean Water Act,
33 U.S.C. §§ 1251 et seq., the Toxic Substances Control Act, 15
U.S.C. §§ 2601 et seq., the 


 


104

















 


Emergency Planning and
Community Right to Know Act, 42 U.S.C. §§ 11001 et seq., each as
amended, and their state or local counterparts or equivalents.


 


“Hazardous
Materials” means all pollutants, contaminants, wastes, chemicals, materials,
substances and constituents, including explosive or radioactive substances or
petroleum or petroleum distillates, asbestos or asbestos containing materials,
polychlorinated biphenyls or radon gas, of any nature, in each case subject to
regulation or which can give rise to liability under any Environmental Law.


 


“Release”
means any placing, spilling, leaking, seepage, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migrating, dumping,
disposing or depositing in, into, onto or through the Environment.


 


In addition to the indemnity provided for in this Section 7.07(b),
each Indemnitee shall have the benefit of all indemnities provided in the
Collateral Documents, including, without limitation, Section 5.18(2) of
the Parent and Issuers Security Agreement and Section 5.19(2) of the
Subsidiary Guarantors Security Agreement.


 


(c)                                  The obligations
of the Issuers and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture, the termination for any reason of
this Indenture and the resignation or removal of the Trustee.


 


(d)                                 To secure the
Issuers’ and the Guarantors’ payment and indemnification obligations in this Section 7.07
and under each Collateral Document to which it is a party, the Trustee shall
have a Lien prior to the Notes upon the Collateral and on all money or other
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. 
Such Lien will constitute a Permitted Lien and will survive the
satisfaction and discharge of this Indenture, the termination for any reason of
this Indenture and the resignation or removal of the Trustee.


 


(e)                                  In addition and
without prejudice to the rights provided to the Trustee under any of the
provisions of this Indenture or any Collateral Document, when the Trustee
incurs expenses or renders services after an Event of Default specified in Section 6.01(7) or
(8) 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.


 


(f)                                    The Trustee
will comply with the provisions of TIA § 313(b)(2) to the extent applicable.


 


“Trustee” for purposes of this Section 7.07
shall include any predecessor Trustee, separate trustee or co-trustee; provided, however, that
the negligence, willful misconduct or bad faith of any Trustee, separate
trustee or co-trustee hereunder shall not affect the rights of any other
trustee, separate trustee or co-trustee hereunder.


 


105

















 


Section 7.08.                             Replacement
of Trustee.


 


(a)                                  A resignation
or removal of the Trustee and appointment of a successor Trustee will become effective
only upon the successor Trustee’s acceptance of appointment as provided in this
Section 7.08.


 


(b)                                 The Trustee may
resign in writing at any time and be discharged from the trust hereby created
by so notifying the Issuers.  The Holders
of a majority in aggregate principal amount of the then outstanding Notes may
remove the Trustee by so notifying the Trustee and the Issuers in writing.  The Issuers may remove the Trustee if:


 


(1)                                  the Trustee
fails to comply with Section 7.10 hereof;


 


(2)                                  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;


 


(3)                                  a custodian or
public officer takes charge of the Trustee or its property; or


 


(4)                                  the Trustee
becomes incapable of acting.


 


(c)                                  If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuers will promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in aggregate principal amount of the
then outstanding Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuers.


 


(d)                                 If a successor
Trustee does not take office within 60 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Issuers, or the Holders of at least
10% in aggregate principal amount of the then outstanding Notes may petition
any court of competent jurisdiction for the appointment of a successor Trustee.


 


(e)                                  If the Trustee,
after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.


 


(f)                                    A successor
Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers.  Thereupon, the
resignation or removal of the retiring Trustee will become effective, and the
successor Trustee will have all the rights, powers and duties of the Trustee
under this Indenture.  The successor
Trustee will mail a notice of its succession to Holders.  The retiring Trustee will 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 7.07 hereof.  Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company’s obligations under Section 7.07
hereof will continue for the benefit of the retiring Trustee.


 


106

















 


Section 7.09.                             Successor
Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts with
or into, or transfers all or substantially all of its corporate trust business
to, another Person, the successor Person without any further act will be the
successor Trustee.


 


Section 7.10.                             Eligibility;
Disqualification.


 


There will 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 $50.0 million as set forth in its most recent published annual report
of condition.


 


This Indenture will always have a Trustee who
satisfies the requirements of TIA § 310(a)(1), (2) and (5).  The Trustee is subject to TIA § 310(b).


 


Section 7.11.                             Preferential
Collection of Claims Against Company.


 


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.


 


Section 7.12.                             Payment
of Additional Interest.


 


If Additional Interest is payable, the Issuers shall
deliver to the Trustee an Officer’s Certificate to that effect stating (a) the
amount of such Additional Interest that is payable and (b) the date on
which such Additional Interest is payable. 
Unless and until a Responsible Officer of the Trustee receives at the
Corporate Trust Office such a certificate, the Trustee may assume without
inquiry that no such Additional Interest is payable.  If the Company has paid Additional Interest
directly to the Persons entitled to them, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment.


 


Section 7.13.                             Appointment
of Co-Trustees.


 


At any time or times, for the purpose of meeting the
legal requirements of any jurisdiction (including any jurisdiction in which any
of the Collateral may at the time be located), or if the Trustee is unable or
unwilling to execute any documents in a jurisdiction in which any of Collateral
may at any time be located or hold or enforce the rights of the secured parties
thereunder, each of the Issuers and the Trustee shall have power to appoint,
and, upon the written request of the Trustee or of the Holders of at least
twenty-five per centum (25%) in principal amount of the Notes then Outstanding,
the Issuers and each applicable Guarantor shall for such purpose join with the
Trustee in the execution and delivery of all instruments and agreements
necessary or proper to appoint, one or more Persons approved by the Trustee
and, if no Event of Default shall have occurred and be continuing, by the
Issuers either to act as co-trustee, jointly with the Trustee, of all or any
part of the Collateral, or to act as separate trustee of any such property, in
either case with such powers as may be provided in the instrument of appointment,



 


107

















 


and to vest in such Person
or Persons, in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section 7.13.  If the Issuers or any applicable Guarantor
does not join in such appointment within fifteen (15) days after the receipt by
it of a request so to do, or if an Event of Default shall have occurred and be
continuing, the Trustee alone shall have power to make such appointment.


 


Should any written instrument or instruments from
the Issuers or any Guarantor be required by any co-trustee or separate trustee
so appointed to more fully confirm to such co-trustee or separate trustee such
property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Issuers and/or such Guarantor.


 


Every co-trustee or separate trustee shall, to the
extent permitted by law and applicable regulation, but to such extent only, be
appointed subject to the following conditions:


 


(a)                                  the Notes shall
be authenticated and delivered, and all rights, powers, duties and obligations
hereunder in respect of the custody of securities, cash and other personal
property held by, or required to be deposited or pledged with, the Trustee
hereunder, shall be exercised solely, by the Trustee;


 


(b)                                 the rights,
powers, duties and obligations hereby conferred or imposed upon the Trustee in
respect of any property covered by such appointment shall be conferred or
imposed upon and exercised or performed either by the Trustee or by the Trustee
and such co-trustee or separate trustee jointly, as shall be provided in the
instrument appointing such co-trustee or separate trustee, except to the extent
that under any law or applicable regulation of any jurisdiction in which any
particular act is to be performed the Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties and
obligations shall be exercised and performed by such co-trustee or separate
trustee, but solely at the direction of the Trustee;


 


(c)                                  the Trustee at
any time, by an instrument in writing executed by it, with the concurrence of
the Issuers, may accept the resignation of or remove any co-trustee or separate
trustee appointed under this Section 7.13, and, if an Event of Default
shall have occurred and be continuing, the Trustee shall have power to accept
the resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Issuers.  The
Issuers and each applicable Guarantor shall join with the Trustee in the
execution and delivery of all instruments and agreements necessary or proper to
effectuate such resignation or removal. 
A successor to any co-trustee or separate trustee so resigned or removed
may be appointed in the manner provided in this Section 7.13;


 


(d)                                 neither the
Trustee nor any co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee hereunder; and


 


(e)                                  Any Act of
Holders delivered to the Trustee shall be deemed to have been delivered to each
such co-trustee and separate trustee.


 


Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of this
Article.  Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of 


 


108

















 


appointment, either jointly
with the Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this Indenture
relating to the conduct of, affecting the liability of, or affording protection
or rights (including the rights to compensation, reimbursement and
indemnification hereunder) to, the Trustee. 
Every such instrument shall be filed with the Trustee.


 


Any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law and applicable regulations, to
do any lawful act under or in respect of this Indenture on its behalf and in
its name.  If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
his, her or its estates, properties, rights, remedies and trusts shall vest in
and be exercised by the Trustee, to the extent permitted by law and applicable
regulations, without appointment of a new or successor trustee.


 


ARTICLE 8

COLLATERAL


 


Section 8.01.                             Collateral
Documents.


 


The payment of the principal of and interest and
premium, if any, on the Notes of each series when due, whether on an interest
payment date, at maturity, by acceleration, repurchase, redemption or otherwise
and whether by the Issuers pursuant to the Notes or by any Guarantor pursuant
to its Note Guarantee and the payment and performance of all other obligations
of the Issuers and the Guarantors under this Indenture, the Notes, the Note
Guarantees and the Collateral Documents are secured as provided in the
Collateral Documents which the Issuers and the Guarantors have entered into
simultaneously with the execution of this Indenture and will be secured by Collateral
Documents hereafter delivered as required or permitted by this Indenture.  The Issuers shall, and shall cause each
Guarantor to, and each Guarantor shall, do all filings (including filings of
continuation statements and amendments to Uniform Commercial Code financing
statements or PPSA financing statements that may be necessary to continue the
effectiveness of such Uniform Commercial Code financing statements or PPSA
financing statements) and all other actions as are necessary or required by the
Collateral Documents to maintain (at the sole cost and expense of the Company
and the Guarantors) the security interest created by the Collateral Documents
in the Collateral as a perfected security interest, subject only to Permitted
Liens.


 


Section 8.02.                             Collateral
Agent.


 


(a)                                  The Collateral
Agent is authorized and empowered to appoint one or more co-Collateral Agents
as it deems necessary or appropriate.


 


(b)                                 Neither the
Trustee, the Collateral Agent, any separate trustee or co-trustee, nor any of
their respective officers, directors, employees, attorneys or agents will be
responsible or liable for the existence, genuineness, value, condition, title
or protection of any Collateral, for the legality, enforceability,
effectiveness, validity, enforceability or sufficiency of the Collateral
Documents, for the creation, perfection, priority, sufficiency or protection of
any Lien securing or intending to secure the First Lien Obligations, or for any
defect or deficiency as to any such matters, or for any failure to demand,
collect, foreclose or realize upon or otherwise enforce any 


 


109

















 


such Liens or Collateral Documents or any
delay in doing so; provided that
if instructed by the Required Secured Creditors (as defined in any Security
Agreement) in accordance with the provisions of the Collateral Documents, the
Collateral Agent (subject to the receipt of an indemnity requested by it and
acceptable to it and any other applicable provisions of the Security Documents)
shall comply with instructions from such Required Secured Creditors.


 


The recitals and other representations and
warranties of the Issuers and the Guarantors contained in the Collateral
Documents shall be taken as the statements of the Issuers and the Guarantors,
as the case may be, and neither the Trustee nor the Collateral Agent assumes any
responsibility for their correctness. 
Neither the Trustee nor the Collateral Agent shall have any
responsibility to make or to see to the making of any recording, filing or
registration of any instrument or notice (including any mortgage or financing
or continuation statement or any tax or securities form (or any rerecording,
refiling or reregistration of any thereof)), at any time in any public office
or elsewhere for the purpose of perfecting, maintaining the perfection of or
otherwise making effective the lien or security interest of any of the
Collateral Documents or for any other purpose and shall have no responsibility
for seeing to the insurance on the Collateral or for paying any taxes, charges
or assessments on or relating to the Collateral or for otherwise maintaining
the Collateral, including attending to any environmental matters in respect
thereof or disposing of any hazardous or other wastes located thereon.


 


Neither the Trustee nor the Collateral Agent shall
have any obligation to enforce any provision of the Collateral Documents or to
take any other steps in connection with the Collateral or any other collateral,
except as otherwise may be expressly provided for in the Collateral Documents.  Neither the Trustee nor the Collateral Agent
shall have any duty to ascertain or inquire as to the performance or observance
of, and shall have no duty to itself perform or observe or to cause to be
performed or observed, any of the terms of this Indenture or any of the
Collateral Documents to be performed or observed by the Issuers, the Guarantors
or any other Person that is a party thereto or bound thereby.


 


(c)                                  Subject to the
provisions of the Collateral Documents, the Collateral Agent will be subject to
such directions as may be given it by the Trustee from time to time (as
required or permitted by this Indenture). 
Except as directed by the Trustee as required or permitted by this
Indenture and except as required by the Collateral Documents, the Collateral
Agent will not be obligated:


 


(1)                                  to act upon directions
purported to be delivered to it by any other Person;


 


(2)                                  to foreclose
upon or otherwise enforce any Lien created by the Collateral Documents; or


 


(3)                                  to take any
other action whatsoever with regard to any or all of the Collateral Documents
or Collateral.


 


(d)                                 The Collateral
Agent will be accountable only for amounts that it actually receives as a
result of the enforcement of the Liens under the Collateral Documents.


 


110














 


(e)                                  In acting as
Collateral Agent or co-Collateral Agent, the Collateral Agent and each
co-Collateral Agent shall be entitled to, and may rely upon and enforce, each
and all of the rights, powers, immunities, indemnities and benefits given to
the Trustee under Article 7 hereof, including, without limitation, the
right to be indemnified, as and to the same extent as the Trustee and as if
each reference to “Trustee” in Article 7 were a reference to “Collateral
Agent or co-Collateral Agent”.


 


(f)                                    The Collateral
Agent shall be fully protected in acting in accordance with the terms of the
Intercreditor Agreement and the Collateral Documents.


 


(g)                                 If the Issuer (i) incurs
Liquidity Facility Obligations at any time when no Intercreditor Agreement is
in effect or at any time when Indebtedness constituting Liquidity Facility Obligations
entitled to the benefit of the Intercreditor Agreements is concurrently
retired, and (ii) directs the Trustee to deliver to the Collateral Agent
an Officer’s Certificate so stating and requesting the Collateral Agent to
enter into an intercreditor agreement (on substantially the same terms, without
any changes that would be adverse to the interests of the Holders of Notes, as
the Intercreditor Agreement as in effect on such date and which shall be
accompanied by an Opinion of Counsel to that effect) in favor of a designated
agent or representative for the holders of the Liquidity Facility Obligations
so incurred, the Holders acknowledge that the Collateral Agent is hereby
authorized and directed to enter into such intercreditor agreement, bind the
Holders on the terms set forth therein and perform and observe its obligations
thereunder.  The Collateral Agent shall
have no obligation to enter into any such intercreditor agreement containing
any provision or provisions that would be adverse to its interests.


 


Section 8.03.                             Authorization
of Actions to Be Taken.


 


(a)                                  Each Holder of
Notes, by its acceptance thereof, consents and agrees to the terms of each
Collateral Document and the Intercreditor Agreement, as originally in effect
and as amended, supplemented or replaced from time to time in accordance with
its terms or the terms of this Indenture, authorizes and directs the Trustee
and the Collateral Agent to enter into the Collateral Documents to which it is
a party, authorizes and empowers the Trustee to direct the Collateral Agent to
enter into, and the Collateral Agent to execute and deliver, the Intercreditor
Agreement, and authorizes and empowers the Trustee and the Collateral Agent to
bind the Holders of Notes as set forth in the Collateral Documents to which it
is a party and the Intercreditor Agreement and to perform its obligations and
exercise its rights and powers thereunder. 
Each Holder of Notes, by its acceptance hereof, hereby appoints BNY
Trust Company of Canada to serve as collateral agent and its representative
hereunder and under the Collateral Documents and the Intercreditor
Agreement.  The Trustee accepts,
acknowledges and agrees to and in favor of the Collateral Agent to be bound by
the terms of the Collateral Documents applicable to it as Authorized
Representative on behalf of the Holders of Notes and agrees to serve as
Authorized Representative for the Holders of Notes with respect to the
obligations under the Notes, with all the rights and obligations of an
Authorized Representative under the Collateral Documents.


 


(b)                                 The Collateral
Agent and the Trustee are authorized and empowered to receive for the benefit
of the Holders of Notes any funds collected or distributed under the Collateral
Documents or the Intercreditor Agreement to which the Collateral Agent or
Trustee is a party and, subject to the terms of the Collateral Documents and
the Intercreditor Agreement, to make 


 


111

















 


further distributions of such funds to the
Holders of Notes according to the provisions of this Indenture.


 


(c)                                  Subject to the
provisions of Sections 7.01, Section 7.02 and the Collateral Documents,
the Trustee may, in its sole discretion and without the consent of the Holders
(but is not obligated to), direct, on behalf of the Holders, the Collateral
Agent to take all actions it deems necessary or appropriate in order to:


 


(1)                                  if an Event of
Default has occurred and is continuing, foreclose upon or otherwise enforce any
or all of the Liens;


 


(2)                                  enforce any of
the terms of the Collateral Documents to which the Collateral Agent or Trustee
is a party; or


 


(3)                                  collect and
receive payment of any and all amounts under the Notes and the Note Guarantees.


 


If an Event of Default has occurred and is
continuing, at the Company’s sole cost and expense, the Trustee is authorized
and empowered (but not obligated) to institute and maintain, or direct the
Collateral Agent to institute and maintain, such suits and proceedings as it
may deem reasonably expedient to protect or enforce the Liens under the
Collateral Documents or the Collateral Documents to which the Collateral Agent
or Trustee is a party or to prevent any impairment of Collateral by any acts
that may be unlawful or in violation of the Collateral Documents to which the
Collateral Agent or Trustee is a party or this Indenture, and such suits and
proceedings as the Trustee or the Collateral Agent may deem reasonably
expedient, at the Company’s sole cost and expense, to preserve or protect its
interests and the interests of the Holders of Notes in the Collateral,
including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid
if the enforcement of, or compliance with, such enactment, rule or order
would impair the security interest hereunder or be prejudicial to the interests
of Holders, the Trustee or the Collateral Agent.


 


Section 8.04.                             Release
of Collateral.


 


(a)                                  Collateral may
be released from the Lien and security interest created by the Collateral
Documents at any time or from time to time in accordance with the provisions of
the Collateral Documents or the Intercreditor Agreement.  In addition, upon the request of the Company
pursuant to an Officer’s Certificate certifying that all conditions precedent
hereunder have been met, the Issuers and the Guarantors will be entitled to the
release of assets included in the Collateral from the Liens securing the Notes,
and the Collateral Agent shall release and the Trustee (if the Trustee is not
then the Collateral Agent) shall authorize the release of the same from such
Liens at the Company’s sole cost and expense upon compliance by the Issuers and
the Guarantors with the applicable provisions of Section 314 of the TIA,
under any one or more of the following circumstances:


 


112

















 


(i)                     the asset has been sold or
otherwise disposed of by an Issuer or a Guarantor to a Person other than an
Issuer or a Guarantor in a transaction not prohibited under Section 4.10,
at the time of such sale or disposition;


 


(ii)                  the asset otherwise becomes
Excluded Property in accordance with the terms of this Indenture;


 


(iii)               the asset is owned or has
been acquired by a Subsidiary Guarantor that has been released from its Note
Guarantee in accordance with the terms of this Indenture (including by virtue
of a Subsidiary Guarantor becoming an Excluded Subsidiary);


 


(iv)              the release of Excess
Proceeds or Excess Loss Proceeds that (x) remain unexpended after the
conclusion of an Asset Sale Offer or an Event of Loss Offer conducted in
accordance with this Indenture and (y) have been withdrawn from the Collateral
Account and have not been applied towards the acquisition of Collateral; or


 


(v)                 as described in Article 9
hereof.


 


In addition, and notwithstanding the provisions of
the immediately preceding paragraph of this Section 8.04(a), upon the
request of the Company pursuant to an Officer’s Certificate certifying that Rolling
Stock has been sold or otherwise disposed of by an Issuer or a Guarantor to a
Person other than an Issuer or a Guarantor in a transaction not prohibited
under Section 4.10, at the time of such sale or disposition, the Issuers
and the Guarantors will be entitled to the release of such Rolling Stock
included in the Collateral from the Liens created by the Collateral Documents.  The Collateral Agent shall release any such Rolling
Stock from such Liens and authorize the filing of such financing change
statements, amendments or releases as may be necessary to discharge the
registration in respect of such Rolling Stock at the Company’s sole cost and expense
upon delivery of such Officer’s Certificate to the Trustee and the Collateral
Agent, together with the draft financing change statement, amendment or
release, in form acceptable to the Collateral Agent.


 


(b)                                 The Liens in
favor of the Collateral Agent under the Collateral Documents for its benefit
and the benefit of the Trustee and the Holders of Notes, will be automatically
released in whole upon (i) payment in full of the principal of, and
accrued and unpaid interest and premium, if any, and Additional Interest, if
any, on the Notes and payment in full of all other Obligations (other than
contingent indemnification obligations) that are due and payable at or prior to
the time such principal, accrued and unpaid interest and premium are paid, (ii) a
satisfaction and discharge of this Indenture under Article 11 hereof or (iii) legal
defeasance or covenant defeasance of this Indenture under Article 13
hereof.


 


(c)                                  Any release of
Collateral permitted by Section 8.04 hereof will be deemed not to impair
the Liens under this Indenture and the Collateral Documents in contravention
thereof and any person that is required to deliver an Officer’s Certificate or
Opinion of Counsel pursuant to Section 314(d) of the TIA shall be
entitled to rely upon the foregoing as a basis for delivery of such certificate
or opinion.  The Trustee shall be
permitted to accept as conclusive evidence of compliance with the foregoing
provisions such Officer’s Certificate or Opinion of Counsel.


 


113

















 


(d)                                 Notwithstanding
the fact that the following assets may secure First Lien Obligations,


 


(i)                     The Equity Interests of the
Restricted Subsidiaries of the Company that are owned by the Company or any
Guarantor will constitute Collateral only to the extent that such Equity Interests
can secure Notes without Rule 3-10 or Rule 3-16 of Regulation S-X
under the Securities Act (“Rule 3-10” and “Rule 3-16,” respectively)
(or any other law, rule or regulation) requiring separate financial
statements of such Restricted Subsidiary to be filed with the SEC (or any other
governmental agency);


 


(ii)                  In the event that either Rule 3-10
or Rule 3-16 requires or is amended, modified or interpreted by the SEC to
require (or is replaced with another rule or regulation, or any other law,
rule or regulation is adopted, which would require) the filing with the
SEC (or any other governmental agency) of separate financial statements of any
Restricted Subsidiary due to the fact that such Restricted Subsidiary’s Equity
Interests secure the Notes or any Guarantee, then the Equity Interests of such
Restricted Subsidiary shall automatically be deemed not to be part of the
Collateral, but only to the extent necessary to not be subject to such
requirement (and, in such event, the Collateral Documents may be amended or
modified, without the consent of any Holder of the Notes, to the extent
necessary to release the second-prior security interests on the shares of
Equity Interests that are so deemed to no longer constitute part of the Collateral);
and


 


(iii)               In the event that either Rule 3-10
or Rule 3-16 is amended, modified or interpreted by the SEC to permit (or
is replaced with another rule or regulation, or any other law, rule or
regulation is adopted, that would permit) such Restricted Subsidiary’s Equity Interests
to secure the Notes in excess of the amount then pledged without the filing
with the SEC (or any other governmental agency) of separate financial
statements of such Restricted Subsidiary, then the Equity Interests of such
Restricted Subsidiary shall automatically be deemed to be part of the
Collateral but only to the extent necessary to not be subject to any such
financial statement requirement (and, in such event, the Collateral Documents
may be amended or modified, without the consent of any Holder of the Notes, to
the extent necessary to subject to the Liens under the Collateral Document such
additional Equity Interests).


 


Section 8.05.                             Filing,
Recording and Opinions.


 


(a)                                  The Issuers
will comply with the provisions of the TIA Sections 314(b) and 314(d) (including,
without limitation, the provision of an initial and annual Opinion of Counsel
under Section 314(b)), in each case following qualification of this
Indenture pursuant to the TIA, except to the extent not required as set forth
in any SEC regulation or interpretation (including any no-action letter issued
by the Staff of the SEC, whether issued to the Company or any other
Person).  Following such qualification,
to the extent the Company is required to furnish to the Trustee an Opinion of
Counsel pursuant to the TIA Section 314(b)(2), the Company will furnish
such opinion not more than 60 but not less than 30 days prior to each May 15.


 


(b)                                 If any
Collateral is released in accordance with this Indenture or any Collateral
Document, the Trustee shall be furnished with all documentation required by the
TIA Section 


 


114

















 


314(d) in connection with such release
and, based on such documentation, will, upon request, deliver a notice or
certificate to the Collateral Agent, with a copy to the Company, confirming
that it has been furnished with all such documentation.


 


(c)                                  The Trustee
will provide a brief report to the Holders relating to such release of the Collateral
as required by TIA Section 313(b)(1).


 


Section 8.06.                             Powers
Exercisable by Receiver or Trustee.


 


In case the Collateral shall be in the possession of
a receiver or trustee, lawfully appointed, the powers conferred in this Article 8
upon the Issuers or a Guarantor with respect to the release, sale or other
disposition of such property may be exercised by such receiver or trustee, and
an instrument signed by such receiver or trustee shall be deemed the equivalent
of any similar instrument of the Issuers or a Guarantor or of any officer or
officers thereof required by the provisions of this Article 8; and if the
Trustee shall be in the possession of the Collateral under any provision of
this Indenture, then such powers may be exercised by the Trustee.


 


Section 8.07.                             Releases
of Collateral .


 


(a)                                  In the event (i) that
the Company delivers to the Trustee, in a form acceptable to it, an Officer’s
Certificate certifying that the conditions set forth in Section 8.04(a)(i),
(ii) or (iii) have been satisfied with respect to the Collateral
described in such Officer’s Certificate, the Trustee shall deliver to the
Company and the Collateral Agent a notice stating that the Trustee, on behalf
of the Holders, disclaims and gives up any and all rights it has in or to such
Collateral, and any rights it has in respect of such Collateral under the
Collateral Documents, and upon receipt by the Collateral Agent of such notice,
the Collateral Agent shall be deemed not to hold a Lien in such Collateral on
behalf of the Trustee and shall do or cause to be done, at the Company’s sole
cost and expense, all acts reasonably necessary to release such Lien as soon as
is reasonably practicable.


 


(b)                                 The Liens in
favor of the Collateral Agent under the Collateral Documents for its benefit
and the benefit of the Holders of Notes will be released in whole:


 


(i)                                     upon payment in full of the
principal of, and accrued and unpaid interest and premium, if any, and
Additional Interest, if any, on the Notes and payment in full of all other Obligations
with respect to the Notes, including all obligations to the Trustee and the
Collateral Agent, that are due and payable at or prior to the time such
principal, accrued and unpaid interest and premium are paid;


 


(ii)                                  upon satisfaction and
discharge of this Indenture under Section 11.01 hereof; or


 


(iii)                               upon legal defeasance or
covenant defeasance of this Indenture in accordance with Article 13
hereof.


 


115

















 


ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.                             Without
Consent of Holders of Notes.


 


Notwithstanding Section 9.02 hereof, the
Issuers, the Guarantors, the Trustee and the Collateral Agent will be
authorized to amend or supplement this Indenture, the Notes, the Intercreditor
Agreement, the Collateral Documents, any Note Guarantees or the Registration
Rights Agreement without the consent of any Holder of Note:


 


(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 Issuer’s or a Guarantor’s obligations under this
Indenture, the Collateral Documents, the Notes, the Intercreditor Agreement,
the Parent Guarantee, the Canadian Subsidiary Guarantee, the Issuers’ Guarantee
and the Note Guarantees to the Holders in the case of a merger, consolidation,
amalgamation or sale, transfer, conveyance, or other disposition or assignment,
of all or substantially all of such Issuer’s or such Guarantor’s assets in
accordance with Section 5.01;


 


(4)                                  to release any
Guarantor from any of its obligations under its Note Guarantee, the Canadian
Subsidiary Guarantee or this Indenture (to the extent permitted by this
Indenture);


 


(5)                                  to make any
change that would provide any additional rights or benefits to the Holders or
that does not materially adversely affect the rights under this Indenture of
any such Holder;


 


(6)                                  to comply with
the requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the TIA;


 


(7)                                  to conform the
text of this Indenture, any Collateral Document, any Note Guarantee, the
Intercreditor Agreement or the Notes to any provision of the “Description of
Notes” section of the Offering Memorandum to the extent that such provision in
the “Description of Notes” section of the Offering Memorandum was intended to
be a verbatim recitation of a provision of this Indenture, any Collateral
Document, any Note Guarantee, the Intercreditor Agreement or the Notes, which
intent may be evidenced by an Officer’s Certificate to that effect;


 


(8)                                  to enter into
additional or supplemental Collateral Documents;


 


(9)                                  to provide for
the issuance of Additional Notes in accordance with the limitations set forth
in this Indenture as of the date of this Indenture;


 


(10)                            to allow any
Guarantor to execute a supplemental indenture, a supplement to the Canadian
Subsidiary Guarantee and/or a Note Guarantee with respect to the Notes;


 


116

















 


(11)                            to release
Collateral as permitted or required by the Collateral Documents or by Article 8
of this Indenture;


 


(12)                            to add assets
to Collateral to secure First Lien Obligations or to amend the Collateral
Documents to secure additional First Lien Obligations to the extent such obligations
are permitted under this Indenture; or


 


(13)                            to evidence and
provide for the appointment of a successor trustee or collateral agent.


 


Upon the request of the Issuers accompanied by a
resolution of each 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 9.06 hereof, the Trustee or Collateral
Agent will join with the Issuers and the Guarantors in the execution of any
amended or supplemental indenture or other amendment 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 and Collateral
Agent will not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties or immunities under this Indenture or
otherwise.


 


Section 9.02.                             With
Consent of Holders of Notes.


 


Except as provided below in this Section 9.02,
the Issuers, the Trustee and the Collateral Agent may amend or supplement this
Indenture (including, without limitation, Sections 3.08, 4.10, 4.15 and 4.19
hereof) and the Notes, the Intercreditor Agreement, the Collateral Documents
and the Note Guarantees with the consent of the Holders of at least a majority
in aggregate principal amount of the then outstanding Notes (including, without
limitation, Additional Notes, if any) voting as a single class (including,
without limitation, consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default (other than a Default in the payment of the
principal of, premium or Additional Interest, if any, or interest on, the
Notes, except a payment default resulting from an acceleration that has been
rescinded) or compliance with any provision of this Indenture, the Notes, the
Collateral Documents or the Note Guarantees may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then outstanding
Notes (including, without limitation, Additional Notes, if any) voting as a
single class (including, without limitation, consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes).  Section 2.08 hereof shall determine
which Notes are considered to be “outstanding” for purposes of this Section 9.02.


 


Upon the request of the Issuers accompanied by a
resolution of its Board of Directors authorizing the 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 9.06
hereof, the Trustee or the Collateral Agent will join with the Issuers and the
Guarantors in the execution of such amended or supplemental indenture or other
amendment unless such amended or supplemental indenture adversely affects the
Trustee’s or the Collateral Agent’s own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee or the Collateral Agent 


 


117

















 


may in its discretion, but
will not be obligated to, enter into such amended or supplemental Indenture or
amendment.


 


It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the particular form of
any proposed amendment, supplement or waiver, but it is sufficient if such
consent approves the substance thereof.


 


After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company will 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, will not, however, in any way impair or affect
the validity of any such amended or supplemental indenture or waiver.  Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding voting as a single class may waive compliance in a particular
instance by the Company with any provision of this Indenture or the Notes or
the Note Guarantees.  However, without
the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):


 


(1)                                  reduce, or
change the maturity of, the principal of any Note;


 


(2)                                  reduce the rate
of or extend the time for payment of interest, including default interest on
any Note;


 


(3)                                  reduce any
premium payable upon redemption of the Notes or change the date on, or the
circumstances under, which any Notes are subject to redemption (other than
Sections 3.08, 4.10 and 4.15 hereof, except that if a Change of Control has
occurred, no amendment or other modification of the obligation of the Company
to make a Change of Control Offer relating to such Change of Control shall be
made without the consent of each Holder of the Notes affected);


 


(4)                                  make any Note
payable in money or currency other than that stated in the Notes;


 


(5)                                  modify or
change any provision of this Indenture or the related definitions to affect the
ranking of the Notes or any Note Guarantee in a manner that adversely affects
the Holders;


 


(6)                                  reduce the
percentage of Holders necessary to consent to an amendment or waiver to this
Indenture or the Notes;


 


(7)                                  waive a Default
or Event of Default in the payment of principal of or premium or interest on,
any Notes (except a rescission of acceleration of the Notes by the Holders of
at least a majority in aggregate principal amount of the then outstanding Notes
and a waiver of the payment default that resulted from such acceleration);


 


118

















 


(8)                                  impair the
rights of Holders to receive payments of principal of or interest on the Notes
on or after the due date therefor or to institute suit for the enforcement of
any payment on the Notes;


 


(9)                                  release Parent
or any Guarantor that is a Significant Subsidiary from any of its obligations
under its Note Guarantee or this Indenture, except as permitted by this
Indenture; or


 


(10)                            make any change
in the preceding amendment and waiver provisions.


 


Additionally, any amendment, consent or waiver that
would constitute a release of all or substantially all of the Collateral from
the Collateral Documents or all or substantially all of the Note Guarantees
will require the consent of Holders of not less than 75% of the outstanding
Notes.


 


Section 9.03.                             Compliance
with Trust Indenture Act.


 


Every amendment or supplement to this Indenture or the
Notes will be set forth in an amended or supplemental indenture that complies
with the TIA as then in effect.


 


Section 9.04.                             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 Holder’s Note, even if notation
of the consent is not made on any Note. 
An amendment, supplement or waiver becomes effective in accordance with
its terms and thereafter binds every Holder.


 


Section 9.05.                             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, upon receipt of an Authentication Order,
authenticate new Notes that reflect the amendment, supplement or waiver.


 


Failure to make the appropriate notation or issue a
new Note will not affect the validity and effect of such amendment, supplement
or waiver.


 


Section 9.06.                             Trustee
to Sign Amendments, etc.


 


The Trustee or Collateral Agent, as applicable, will
sign any amendment or supplement authorized pursuant to this Article 9 if
the amendment or supplement does not adversely affect its rights, duties,
liabilities or immunities.  The Issuers
may not sign an amended or supplemental indenture until the Board of Directors
of the Issuers approves it.  In executing
any amendment or supplement, the Trustee or Collateral Agent, as applicable,
will be entitled to receive and (subject to Section 7.01 hereof) will be
fully protected in relying upon, in addition to the documents required by Section 12.04
hereof, an Officer’s Certificate and an Opinion of Counsel stating that the
execution of such amendment or supplement is authorized or permitted by this Indenture.


 


119

















 


ARTICLE 10

GUARANTEES


 


Section 10.01.        Guarantee.


 


(a)                                  Subject to this
Article 10, each of the U.S. Guarantors hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note authenticated and delivered
by the Trustee and to the Trustee and the Collateral Agent and their respective
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes or the obligations of the Issuers hereunder or thereunder,
that:


 


(1)                                  the principal
of, premium and Additional Interest, if any, and interest on, the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and interest
on the Notes, if any, if lawful, and all other obligations of the Issuers to
the Holders or the Trustee or Collateral Agent hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and


 


(2)                                  in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity,
by acceleration or otherwise.


 


Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, each U.S. Guarantor will
be jointly and severally obligated to pay the same immediately.  Each U.S. Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.


 


(b)                                 The U.S.
Guarantors hereby agree that their obligations hereunder are 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 of the Notes with respect to any provisions hereof or thereof,
the recovery of any judgment against the Issuers, any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. 
Each U.S. Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Issuers, any right to require a proceeding first against the Issuers,
protest, notice and all demands whatsoever and covenant that this Note Guarantee
will not be discharged except by complete performance of the obligations
contained in the Notes and this Indenture.


 


(c)                                  If any Holder
or the Trustee or the Collateral Agent is required by any court or otherwise to
return to the Issuers, the U.S. Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuers
or the U.S. Guarantors, any amount paid by any of the Trustee, the Collateral
Agent or such Holder, this Note Guarantee, to the extent theretofore discharged,
will be reinstated in full force and effect.


 


(d)                                 Each U.S.
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of 


 


120

















 


all obligations guaranteed hereby.  Each U.S. Guarantor further agrees that, as
between the U.S. Guarantors, on the one hand, and the Holders, the Trustee and
the Collateral Agent, on the other hand, (1) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6
hereof for the purposes of this Note Guarantee notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the
U.S. Guarantors for the purpose of this Note Guarantee.  The U.S. Guarantors will have the right to
seek contribution from any non-paying U.S. Guarantor so long as the exercise of
such right does not impair the rights of the Holders under the Note Guarantee.


 


Section 10.02.                       Limitation
on Guarantor Liability.


 


Each U.S. Guarantor, and by its acceptance of Notes,
each Holder, hereby confirms that it is the intention of all such parties that
the Note Guarantee of such U.S. Guarantor not constitute a fraudulent transfer
or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to any Note Guarantee. 
To effectuate the foregoing intention, the Trustee, the Holders and the
U.S. Guarantors hereby irrevocably agree that the obligations of such U.S.
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
U.S. Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by
or on behalf of any other U.S. Guarantor in respect of the obligations of such
other U.S. Guarantor under this Article 10, result in the obligations of
such U.S. Guarantor under its Note Guarantee not constituting a fraudulent
transfer or conveyance.


 


Section 10.03.                       Execution
and Delivery of Note Guarantee.


 


To evidence its Note Guarantee set forth in Section 10.01
hereof, each U.S. Guarantor hereby agrees that a notation of such Note
Guarantee substantially in the form attached as Exhibit E hereto will be
endorsed by an Officer of such U.S. Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture will be executed on behalf of
such U.S. Guarantor by one of its Officers.


 


Each U.S. Guarantor hereby agrees that its Note
Guarantee set forth in Section 10.01 hereof will remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.


 


If an Officer whose signature is on this Indenture
or on the Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Note Guarantee is endorsed, the Note
Guarantee will be valid nevertheless.


 


The delivery of any Note by the Trustee, after the
authentication thereof hereunder, will constitute due delivery of the Note
Guarantee set forth in this Indenture on behalf of the U.S. Guarantors.


 


121














 


In the event that the Company or any of its
Restricted Subsidiaries creates or acquires any Restricted Subsidiary after the
date of this Indenture, if required by Section 4.17 hereof, the Company
will cause such Restricted Subsidiary to comply with the provisions of Section 4.17
hereof and this Article 10, to the extent applicable.


 


Section 10.04.        Guarantors May Consolidate,
etc., on Certain Terms.


 


Except as otherwise provided in Section 10.05
hereof, no U.S. Guarantor may sell or otherwise dispose of all or substantially
all of its assets to, or consolidate with or merge with or into (whether or not
such U.S. Guarantor is the surviving Person) another Person, other than the
Company or another U.S. Guarantor, unless:


 


(1)           immediately
after giving effect to such transaction, no Default has occurred and is continuing;
and


 


(2)           either:


 


(a)           subject to Section 10.05 hereof, such U.S.
Guarantor is the surviving Person or the Person acquiring the property in any
such sale or disposition or the Person formed by or surviving any such
consolidation or merger unconditionally assumes all the obligations of that
U.S. Guarantor under this Indenture, its Note Guarantee and the Collateral
Documents on the terms set forth herein or therein, pursuant to a supplemental
indenture and appropriate supplements to such Collateral Documents; or


 


(b)           the Net Available Proceeds of such sale or other
disposition are applied in accordance with Section 4.10 hereof.


 


In case of any such consolidation, merger, sale or
conveyance and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee and satisfactory in form to
the Trustee, of the Note Guarantee endorsed upon the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the U.S. Guarantor, such successor Person will succeed to
and be substituted for the U.S. Guarantor with the same effect as if it had
been named herein as a U.S. Guarantor. 
Such successor Person thereupon may cause to be signed any or all of the
Note Guarantees to be endorsed upon all of the Notes issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.  All the Note Guarantees so
issued will in all respects have the same legal rank and benefit under this
Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note Guarantees
had been issued at the date of the execution hereof.


 


Except as set forth in Articles 4 and 5 hereof, and
notwithstanding clauses 2(a) and (b) above, nothing contained in this
Indenture or in any of the Notes will prevent any consolidation or merger of a
U.S. Guarantor with or into the Company or another U.S. Guarantor, or will prevent
any sale or conveyance of the property of a U.S. Guarantor as an entirety or
substantially as an entirety to the Company or another U.S. Guarantor.


 


122

















 


Section 10.05.        Releases.


 


A U.S. Guarantor shall be released from its
obligations under its Note Guarantees and its obligations under this Indenture,
the Collateral Documents and the Registration Rights Agreements:


 


(i)            in the event of a sale or
other disposition of all or substantially all of the assets of such U.S.
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Equity Interests of such U.S. Guarantor then held by
the Company and the Restricted Subsidiaries;


 


(ii)           if such U.S. Guarantor is
designated as an Unrestricted Subsidiary, otherwise becomes an Excluded
Subsidiary or otherwise ceases to be a Restricted Subsidiary, in each case in
accordance with the provisions of this Indenture, upon effectiveness of such
designation or when it first becomes an Excluded Subsidiary or ceases to be a Restricted
Subsidiary, respectively in each case in accordance with this Indenture; or


 


(iii)          upon payment in full of the
principal of, and accrued and unpaid interest and premium, if any, and
Additional Interest, if any, on the Notes and payment in full of all other
Obligations with respect to such Notes, including the obligations to the
Trustee and the Collateral Agent, that are due and payable at or prior to the
time such principal, accrued and unpaid interest and premium are paid.


 


Any U.S. Guarantor not released from its obligations
under its Note Guarantee as provided in this Section 10.05 will remain
liable for the full amount of principal of and interest and premium and
Additional Interest, if any, on the Notes and for the other obligations of any
U.S. Guarantor under this Indenture as provided in this Article 10.


 


Section 10.06.        Canadian Guarantees.


 


The Company shall, as of the Issue Date, cause (i) Parent
to execute the Parent Guarantee substantially in the form attached hereto as Exhibit G-1,
(ii) each of its Subsidiary Guarantors organized under the laws of Canada
or any province or territory thereof to execute the Canadian Subsidiary
Guarantee substantially in the form attached hereto as Exhibit G-2 and (iii) the
Company and Finance Corp. to execute the Issuers’ Guarantee substantially in
the form attached hereto as Exhibit G-3.


 


ARTICLE 11

SATISFACTION AND DISCHARGE


 


Section 11.01.        Satisfaction and Discharge.


 


This Indenture will be discharged and will cease to
be of further effect (except as to rights of registration of transfer or
exchange of Notes which shall survive until all Notes have been canceled) as to
all outstanding Notes when either


 


(1)           either:


 


123





















 


(A)          all the Notes
that have been authenticated and delivered (except lost, stolen or destroyed
Notes that have been replaced or paid and Notes for whose payment money has
therefore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from this trust)
have been delivered to the Trustee for cancellation, or


 


(B)           all Notes that
have not been delivered to the Trustee for cancellation otherwise (i) have
become due and payable by reason of the mailing of a notice of redemption or
otherwise or, (ii) will become due and payable, or may be called for
redemption, within one year or (iii) have been called for redemption
pursuant to Section 3.07, and, in any case, 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 legal tender, U.S. Government Obligations or a combination
thereof, in such amounts as will be sufficient (without consideration of any
reinvestment of interest) to pay and discharge the entire Indebtedness (including
all principal and accrued interest) on the Notes not theretofore delivered to
the Trustee for cancellation for principal, premium and Additional Interest, if
any, and accrued interest to the date of maturity or redemption,


 


(2)           no Default has
occurred and is continuing on the date of the deposit (other than a Default
resulting from the borrowing of funds to be applied to such deposit) and the
deposit will not result in a breach or violation of, or constitute a default
under, any other instrument to which the Issuers are, or any Guarantor is, a
party or by which the Issuers or any Guarantor is bound;


 


(3)           the Issuers
have, or any Guarantor has, paid or caused to be paid all sums payable by the
Issuers and/or the Guarantors under this Indenture; and


 


(4)           the Issuers
have delivered irrevocable instructions to the Trustee under this Indenture to
apply the deposited money toward the payment of the Notes at maturity or on the
date of redemption, as the case may be.


 


In addition, the Issuers shall deliver an Officer’s
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been complied with.


 


Notwithstanding the satisfaction and discharge of
this Indenture, if money has been deposited with the Trustee pursuant to
subclause (b) of clause (1) of this Section 11.01, the provisions
of Sections 11.02 and 8.06 hereof will survive. 
In addition, nothing in this Section 11.01 will be deemed to
discharge those provisions of Section 7.07 hereof, that, by their terms,
survive the satisfaction and discharge of this Indenture.


 


Section 11.02.        Application of Trust Money.


 


Subject to the provisions of Section 8.06
hereof, all money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the 


 


124

















 


provisions of the Notes and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal (and premium and Additional
Interest, if any) and interest for whose payment such money has been deposited
with the Trustee; but such money need not be segregated from other funds except
to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply
any money or U.S. Government Obligations in accordance with Section 11.01
hereof by reason of any legal proceeding or by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Issuers’ and any Guarantor’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit
had occurred pursuant to Section 11.01 hereof; provided that if the
Issuers has made any payment of principal of, premium or Additional Interest,
if any, or interest on, any Notes because of the reinstatement of its obligations,
the Issuers shall be subrogated to the rights of the Holders of such Notes to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.


 


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), the imposed duties
will control.


 


Section 12.02.        Notices.


 


Any notice or communication by the Issuers, any
Guarantor, the Trustee or the Collateral Agent to the others is duly given if
in writing and delivered in Person or by first class mail (registered or
certified, return receipt requested), facsimile transmission or overnight air
courier guaranteeing next day delivery, to the others’ address:


 


If to the Issuers and/or any Guarantor:


 


Gibson Energy ULC

1700, 440 2nd Avenue SW

Calgary, Alberta T2P 5E9

Canada

Attention:  Richard G. Taylor, Chief
Financial Officer

Telecopier No.: +1 (403) 206-4011

Email: rtaylor@gibsons.com


 


with copy to


 


Gibson Energy ULC


1700, 440 2nd Avenue SW


Calgary, Alberta T2P 5E9


Canada


 


125

















 


Attention:  Vice President and
General Counsel


Telecopier No.: +1 (403) 206-4011


 


with copy to


 


Riverstone Holdings LLC

712 Fifth Avenue

51st Floor

New York, NY 10019

Attention:  Robert Tichio

Telecopier No.: +1 (212) 993-0077

Email: robert@riverstonellc.com


 


and


 


Latham & Watkins LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004-1304

Attention:  Patrick H. Shannon

Telecopier No.: +1 (202) 637-2201

Email: patrick.shannon@lw.com


 


If to the Trustee:


 


The
Bank of New York Mellon

101 Barclay Street, 4E

New York, NY 10286


Attention:  Corporate Trust Division-Global Finance
Americas

Telecopier No.:  (212) 815-5802/03


 


If
to the Collateral Agent:


 


BNY Trust Company of Canada

Suite 1101

4 King Street West

Toronto, Ontario M5H 1B6 

Attention: Angela Ikhimokpa 

Assistant Treasurer 

Phone: (416) 933-8514

Fax:      (416) 360-1711

e-mail:  angela.ikhimokpa@bnymellon.com


 


The Issuers, any Guarantor, the Trustee or the
Collateral Agent, by notice to the others, may designate additional or
different addresses for subsequent notices or communications.


 


126

















 


All notices and communications (other than those
sent to Holders or the Trustee) will 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 acknowledged, if transmitted by facsimile; and
the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.


 


Anything herein to the contrary notwithstanding, any
notice or communication to the Trustee will not be effective or be deemed to
have been duly given unless and until such notice or communication is actually
received by the Trustee at the Corporate Trust Office of the Trustee.


 


The Trustee shall have the right, but shall not be
required, to rely upon and comply with instructions and directions sent by
e-mail, facsimile and other similar unsecured electronic methods by persons
believed by the Trustee to be authorized to give instructions and directions on
behalf of the Company.  The Trustee shall
have no duty or obligation to verify or confirm that the person who sent such
instructions or directions is, in fact, a person authorized to give instructions
or directions on behalf of the Company; and the Trustee shall have no liability
for any losses, liabilities, costs or expenses incurred or sustained by the
Company as a result of such reliance upon or compliance with such instructions
or directions.  The Company agrees to
assume all risks arising out of the use of such electronic methods to submit
instructions and directions to the Trustee, including without limitation the
risk of the Trustee acting on unauthorized instructions, and the risk of
interception and misuse by third parties.


 


Any notice or communication to a Holder will be
mailed by first class mail, postage prepaid, to its address shown on the
register kept by the Registrar.  Any
notice or communication will 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 will not affect its sufficiency with respect to other Holders.


 


If a notice or communication is mailed to a Holder,
the Company, Finance Corp. or any Guarantor in the manner provided above within
the time prescribed, it is duly given, whether or not the addressee receives
it.


 


If the Company mails a notice or communication to
Holders, it will mail a copy to the Trustee, the Collateral Agent 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
Collateral Agent, the Registrar and anyone else shall have the protection of
TIA § 312(c).


 


Section 12.04.        Certificate and Opinion as to
Conditions Precedent.


 


Upon any request or application by the Issuers to
the Trustee to take any action under this Indenture (other than in connection
with a request for the authentication and delivery of the Initial Notes on the
Issue Date), the Issuers shall furnish to the Trustee:


 


127

















 


(1)           an Officer’s
Certificate in form reasonably satisfactory to the Trustee (which must include
the statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signers, all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance which constitutes a condition
precedent) relating to the proposed action have been complied with; and


 


(2)           an Opinion of
Counsel in a form reasonably satisfactory to the Trustee (which must include
the statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent (including any covenant
compliance which constitutes a condition precedent) have been complied with.


 


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)) must comply with the
provisions of TIA § 314(e) and must include:


 


(1)           a statement
that the Person making such certificate or opinion has read such covenant or
condition;


 


(2)           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;


 


(3)           a statement
that, in the opinion of such Person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and


 


(4)           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 Stockholders.


 


No past, present or future director, officer,
employee, incorporator or stockholder of the Issuers or any Guarantor, as such,
will have any liability for any obligations of the Issuers or any Guarantor
under the Notes, this Indenture, the Note Guarantees, the Collateral Documents,
the Intercreditor Agreement or the Registration Rights Agreement or of any
Guarantor under its Note Guarantee or for any claim based on, in respect of, or
by reason of, such 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 and the Note Guarantees.  The
waiver may not be effective to waive liabilities under the federal securities
laws.


 


128

















 


Section 12.08.        Governing Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND EACH NOTATION OF
NOTE GUARANTEE, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


Section 12.09.        Consent to Jurisdiction and
Service of Process; Waiver of Trial by Jury.


 


The Issuers and the Guarantors domiciled outside the
United States will irrevocably appoint CT Corporation System, 111 Eighth
Avenue, New York, New York 10011, as their agent for service of process in any
suit, action or proceeding with respect to this Indenture, the Notes and the
Registration Rights Agreement brought in any Federal or state court located in
New York City and each of such parties will submit to the jurisdiction
thereof.  Service of process may be made
in any manner permitted by applicable law.


 


EACH PARTY HERETO HEREBY WAIVES, AND EACH HOLDER OF
A NOTE BY ITS ACCEPTANCE THEREOF, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY
OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE.


 


Section 12.10.        No Adverse Interpretation of
Other Agreements.


 


This Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Issuers or its Subsidiaries or
of any other Person.  Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


Section 12.11.        Successors.


 


All agreements of the Issuers in this Indenture and
the Notes will bind its successors.  All
agreements of the Trustee in this Indenture will bind its successors.  All agreements of each Guarantor in this
Indenture will bind its successors, except as otherwise provided in Section 10.05
hereof.


 


Section 12.12.        Severability.


 


In case any provision in this Indenture or in the
Notes is invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.


 


Section 12.13.        Counterpart Originals.


 


The parties may sign any number of copies of this
Indenture.  Each signed copy will be an
original, but all of them together represent the same agreement.


 


129

















 


Section 12.14.        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 will in no way modify or restrict any of the terms or provisions hereof.


 


Section 12.15.        Interest Act.


 


For purposes of the Interest
Act (Canada), whenever any interest or fee payable by the Issuers on
the Notes is calculated using a rate based on a year of 360 days, such rate
used pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate based on a year of 360 days, (y) multiplied
by the actual number of days in the calendar year in which the period for which
such interest or fee is payable (or compounded) ends, and (z) divided by
360.  The principle of deemed
reinvestment of interest does not apply to any interest calculation on the
Notes with respect to the Issuers, and the rates of interest stipulated in the
Notes payable by the Issuers are intended to be nominal rates and not effective
rates or yields.


 


ARTICLE 13

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


Section 13.01.        Option To Effect Legal Defeasance
or Covenant Defeasance.


 


The Issuers may, at their option and at any time,
elect to have either Section 13.02 or 13.03 hereof applied to all
outstanding Notes upon compliance with the conditions set forth below in this Article 13.


 


Section 13.02.        Legal Defeasance and Discharge.


 


Upon the Issuers’ exercise under Section 13.01
hereof of the option applicable to this Section 13.02, the Issuers and
each Guarantor shall, subject to the satisfaction of the conditions set forth
in Section 13.04 hereof, be deemed to have been discharged from their
obligations with respect to this Indenture and all outstanding Notes and Note
Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). 
For this purpose, Legal Defeasance means that the Issuers and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes (including the Note Guarantees), which
shall thereafter be deemed to be “outstanding” only for the purposes of Section 13.05
hereof and the other Sections of this Indenture referred to in (a) and (b) below,
cured all then existing Events of Default and to have satisfied all its other
obligations under such Notes and this Indenture including that of each
Guarantor (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
Notes to receive payments in respect of the principal of, premium, if any, and
interest on the Notes when such payments are due solely out of the trust created
pursuant to this Indenture referred to in Section 13.04 hereof;


 


130

















 


(b)           the Issuers’ obligations
with respect to Notes concerning issuing temporary Notes, registration of such
Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an
office or agency for payment and money for security payments held in trust;


 


(c)           the rights, powers, trusts,
duties and immunities of the Trustee, and the Issuers’ and the Guarantors’
obligations in connection therewith; and


 


(d)           this Section 13.02.


 


Subject to compliance with this Article 13, the
Issuers may exercise their option under this Section 13.02 notwithstanding
the prior exercise of their option under Section 13.03 hereof.


 


Section 13.03.        Covenant Defeasance.


 


Upon the Issuers’ exercise under Section 13.01
hereof of the option applicable to this Section 13.03, the Issuers and
each Restricted Subsidiary shall, subject to the satisfaction of the conditions
set forth in Section 13.04 hereof, be released from their obligations
under the covenants contained in Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22,
4.23, 4.24 and 4.25 hereof and clause (3) of Section 5.01(a) hereof
with respect to the outstanding Notes on and after the date the conditions set
forth in Section 13.04 hereof are satisfied (“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
and Note Guarantees, the Issuers and the Guarantors 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 6.01 hereof, but, except as specified above, the remainder
of this Indenture and such Notes and Note Guarantees shall be unaffected
thereby.  In addition, upon the Issuers’
exercise under Section 13.01 hereof of the option applicable to this Section 13.03
hereof, subject to the satisfaction of the conditions set forth in Section 13.04
hereof, Sections 6.01(3), 6.01(4), 6.01(5) and 6.01(6) hereof shall
not constitute Events of Default.


 


Section 13.04.        Conditions to Legal or Covenant
Defeasance.


 


The following shall be the conditions to the
application of either Section 13.02 or 13.03 hereof to the outstanding
Notes:


 


In
order to exercise either Legal Defeasance or Covenant Defeasance with respect
to the Notes:


 


131














 


(1)           the Issuers must
irrevocably deposit with the Trustee, as trust funds, in trust solely for the
benefit of the Holders, U.S. legal tender, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient in the opinion of a
nationally recognized firm of independent public accountants selected by the
Issuers, to pay the principal of and interest on the Notes on the stated date
for payment or on the redemption date of the principal or installment of
principal of or interest on the Notes,


 


(2)           in the case of Legal
Defeasance, the Issuers shall have delivered to the Trustee an opinion of
counsel in the United States confirming that:


 


(a)           the
Issuers have received from, or there has been published by the Internal Revenue
Service, a ruling, or


 


(b)           since
the date of this Indenture, there has been a change in the applicable U.S.
federal income tax law,


 


in either case to the effect that, and based
thereon such opinion of counsel shall confirm that, the Holders will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of the Legal Defeasance and will be subject to U.S. 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,


 


(3)           in the case of
Covenant Defeasance, the Issuers shall have delivered to the Trustee an Opinion
of Counsel in the United States confirming that the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
Covenant Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if the Covenant Defeasance had not occurred,


 


(4)           no Default shall
have occurred and be continuing on the date of such deposit (other than a
Default resulting from the borrowing of funds to be applied to such deposit
(and any similar concurrent deposit relating to other Indebtedness), and the
granting of Liens to secure such borrowings),


 


(5)           the Legal Defeasance
or Covenant Defeasance shall not result in a breach or violation of, or
constitute a Default under this Indenture or a default under any other material
agreement or instrument to which the Issuers or any of its Subsidiaries is a
party or by which the Issuers or any of its Subsidiaries is bound (other than
this Indenture or other agreements governing any of the Indebtedness being
defeased, discharged or replaced and other than any such Default or default
resulting solely from the borrowing of funds to be applied to such deposit),


 


(6)           the Issuers shall
have delivered to the Trustee an Officer’s Certificate stating that the deposit
was not made by it with the intent of preferring the Holders over any other of
its creditors or with the intent of defeating, hindering, delaying or
defrauding any other of its creditors or others, and


 


132





















 


(7)           the Issuers shall
have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel,
each stating that the conditions provided for in, in the case of the Officer’s
Certificate, subclauses (1) through (6) of this Section 13.04
and, in the case of the Opinion of Counsel, subclauses (2) and/or (3) and
(5) of this Section 13.04 have been complied with.


 


Section 13.05.        Deposited Money and U.S. Government
Obligations To Be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 13.06 hereof, all money and
U.S. Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section 13.05,
the “Trustee”) pursuant to Section 13.04
hereof in respect of the outstanding Notes shall be held in trust and applied
by the Trustee, in accordance with the provisions of such Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuers or a Guarantor 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 and Additional Interest, 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
U.S. Government Obligations deposited pursuant to Section 13.04 hereof or
the principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the outstanding
Notes.


 


Anything in this Article 13 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuers from time to
time upon the request of the Issuers any money or U.S. Government Obligations
held by it as provided in Section 13.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 13.04(2) and or (3) hereof), are
in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.


 


Section 13.06.        Repayment to Issuers.


 


Any money deposited with the Trustee or any Paying
Agent, or then held by the Issuers, in trust for the payment of the principal
of, premium and Additional Interest, if any, or interest on any Note and
remaining unclaimed for two years after such principal, and premium and Additional
Interest, if any, or interest has become due and payable shall be paid to the
Issuers on their request or (if then held by the Issuers) shall be discharged
from such trust; and the Holder of such Note shall thereafter be permitted to
look only to the Issuers for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Issuers as trustee thereof, shall thereupon cease.


 


Section 13.07.        Reinstatement.


 


If the Trustee or Paying Agent is unable to apply
any United States dollars or U.S. Government Obligations in accordance with Section 13.02
or 13.03 hereof, as the case may be, by 


 


133

















 


reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Issuers’ and the Guarantors’
obligations under this Indenture and the Notes and the Note Guarantees shall be
revived and reinstated as though no deposit had occurred pursuant to Section 13.02
or 13.03 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 13.02 or 13.03 hereof, as
the case may be; provided that, if the Issuers
make any payment of principal of, premium and Additional Interest, if any, or
interest on any Note following the reinstatement of their obligations, the
Issuers shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.


 


[Signatures
on following page]


 


134

















 


SIGNATURES


 


	
  Dated
  as of May 27, 2009

  	
  GIBSON
  ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP
  MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert M. Tichio

  
	
   

  	
   

  	
  Name: 
  Robert M. Tichio

  
	
   

  	
   

  	
  Title: 
  President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY (U.S.) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart
  Hanlon

  
	
   

  	
   

  	
  Title: 
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart
  Hanlon

  
	
   

  	
   

  	
  Title: 
  President

  
	
   

  	
   

  
	
   

  	
  GIBSON ENERGY HOLDING ULC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert M. Tichio

  
	
   

  	
   

  	
  Name: 
  Robert M. Tichio

  
	
   

  	
   

  	
  Title: 
  President and Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  



 


S-1

















 


	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:  President and Chief Executive Officer

  



 


S-2

















 


	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS ULC

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC.

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL LP

  
	
   

  	
  by its general partner,

  
	
   

  	
  Battle River Terminal GP Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:  

  	
  President,
  Chief Executive Officer and Chairman of the Board of Directors

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER TERMINAL GP INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:  

  	
  President,
  Chief Executive Officer and Chairman of the Board of Directors

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BRIDGE CREEK TRUCKING LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A.
  Stewart Hanlon

  
	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  



 


S-3

















 


	
  Dated as of May 27, 2009

  	
  THE BANK OF NEW YORK MELLON,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lici Zhu

  
	
   

  	
   

  	
  Name:          Lici
  Zhu

  
	
   

  	
   

  	
  Title:            Assistant
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  BNY TRUST COMPANY OF CANADA.

  
	
   

  	
  as Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Angela Ikhimokpa

  
	
   

  	
   

  	
  Name:          Angela
  Ikhimokpa

  
	
   

  	
   

  	
  Title:            Authorized
  Signatory

  



 


S-4

















 


EXHIBIT A


 


[FACE OF NOTE]


 


CUSIP/CINS                              


 


11.75% First Lien Senior Secured Note due 2014


 


	
  No.           

  	
   

  	
  $                              

  



 


Gibson Energy ULC


GEP Midstream Finance Corp.


 


jointly
and severally, promise to pay to
[                   ]
or registered assigns,


 


the
principal sum of                                                     
on May 27, 2014.


 


Interest
Payment Dates:  June 1  and December 1 (or, if any such day is
not a Business Day, the next succeeding Business Day)


 


Record
Dates:  May 15 and November 15


 


Dated:  May 27, 2009


 


	
   

  	
  GIBSON
  ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP
  MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  This
  is one of the Notes referred to in the within-mentioned Indenture:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  BANK OF NEW YORK MELLON,

  	
   

  	
   

  
	
  as
  Trustee

  	
   

  	
   

  



 


	
  By:

  	
   

  	
   

  
	
   

  	
  Authorized Signatory

  	
   

  



 


A-2-1














 


11.75% First Lien Senior Secured Notes due 2014


 


[Insert the Global Note Legend,
if applicable pursuant to the provisions of the Indenture]


 


[Insert the Private Placement
Legend, if applicable pursuant to the provisions of the Indenture]


 


Capitalized terms used herein have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.


 


(1)                                  INTEREST.  Gibson Energy ULC, an Alberta unlimited
liability corporation (the “Company”), GEP
Midstream Finance Corp., an Alberta corporation (“Finance
Corp.” and, together with the Company, the “Issuers”),
jointly and severally, promise to pay interest on the principal amount of this
Note at 11.75% per annum until maturity, and shall pay Additional Interest, if
any, as provided in Section 4(a) of the Registration Rights Agreement
referred to below.  The Issuers shall pay
interest semi-annually on June 1 and December 1 of each year, or if
any such day is not a Business Day, on the next succeeding Business Day (each
an “Interest Payment Date”).  Interest on the Notes shall accrue from May 27,
2009 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for; provided that
the first Interest Payment Date shall be on December 1, 2009.  The Company will 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 2%
per annum in excess of the rate then in effect to the extent lawful; it will
pay interest (including post-petition interest in any proceeding under any Bankruptcy
Law) on overdue installments of interest and Additional Interest, if any,
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful.  
Interest shall be computed on the basis of a 360-day year of twelve
30-day months.


 


(2)                                  METHOD OF PAYMENT.  The Issuers will pay interest on the Notes
(except defaulted interest) and Additional Interest, if any, to the Persons who
are registered Holders of Notes at the close of business on each May 15
and November 15 next preceding the applicable Interest Payment Date, even
if such Notes are canceled after the relevant record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture
with respect to defaulted interest.  The
Notes will be payable as to principal, premium and Additional Interest, if any,
and interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest and Additional Interest, if any, may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of
and interest, premium and Additional Interest, if any, on, all Global Notes and
all other Notes the Holders of which will have timely provided wire transfer
instructions to the Company or the Paying Agent.  Such payment will 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, The Bank of New York Mellon, the
Trustee under the Indenture, will act as Paying Agent and Registrar.  The Company may change any Paying 


 


A-2

















 


Agent or Registrar without notice to any
Holder.  The Company or any of its Subsidiaries
may act in any such capacity.


 


(4)                                  INDENTURE.  The Company issued the Notes under an
Indenture dated as of May 27, 2009 (the “Indenture”)
among the Company, Finance Corp., the Guarantors and the Trustee.  The terms of the Notes include those stated
in the Indenture and those made part of the Indenture by reference to the
TIA.  The Notes are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement
of such terms.  To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling.  The Indenture does not limit the aggregate
principal amount of Notes that may be issued thereunder.


 


(5)                                  OPTIONAL REDEMPTION.


 


(a)                                  [Reserved].


 


(b)                                 At any time or from time to
time on or after June 1, 2012, the Issuers, at their option, may redeem
the Notes, in whole or in part, at the redemption prices (expressed as percentages
of principal amount) set forth below, together with accrued and unpaid interest
thereon, if any, to the redemption date, if redeemed during the 12-month period
beginning June 1 of the years indicated:


 


	
  Year

  	
   

  	
  Optional

  redemption price

  	
   

  
	
  2012

  	
   

  	
  105.875

  	
  %

  
	
  2013 and thereafter

  	
   

  	
  100

  	
  %

  



 


Unless the Issuers default in the payment of the
redemption price, interest will cease to accrue on the Notes or portions
thereof called for redemption on the applicable redemption date.


 


(c)                                  In addition to the optional
redemption of the Notes in accordance with the provisions of the preceding
paragraph, at any time or from time to time prior to June 1, 2012, the Issuers,
at their option, may redeem up to 35% of the aggregate principal amount of the
Notes issued under the Indenture with the net cash proceeds of one or more
Qualified Equity Offerings at a redemption price equal to 111.75% of the
principal amount thereof, plus a premium equal to the interest rate applicable
to such Fixed Rate Note, plus accrued and unpaid interest thereon, if any, to
the date of redemption; provided that (1) at
least 65% of the aggregate principal amount of Notes issued under the Indenture
remain outstanding immediately after the occurrence of such redemption and (2) the
redemption occurs within 90 days of the date of the closing of any such
Qualified Equity Offering.


 


(d)                                 In addition, the Issuers
may, at their option, redeem all (but not less than all) of the Notes then
outstanding, in each case at 100% of the principal amount of the Notes, plus accrued
and unpaid interest, if any, to the date of redemption, if the Issuers have
become, or the Issuers reasonably determine that they would become, obligated
to pay, on the next date on which any amount would be payable with respect to
such Notes, any Additional Amounts as a result of change in law (including any
change occurring pursuant to regulations promulgated thereunder or treaties of
any Relevant Taxing Jurisdiction) or change in the interpretation or administration



 


A-3

















 


of law, regulation, ruling
or treaty (including any change pursuant to a holding by a court of competent
jurisdiction) (each such change, a “Change in Tax Law”), if such Change in Tax
Law is announced and becomes effective on or after the Issue Date and the
Issuers reasonably determine that such obligation cannot be avoided by the use
of reasonable measures available to them (not including a substitution of the
Issuer).  Notice of any such redemption
must be given within 60 days of the earlier of the announcement and the
effectiveness of any such Change in Tax Law. Prior to the publication or mailing of any notice of redemption of the
Notes pursuant to the foregoing, the Issuers will deliver to the Trustee (a) an
Officer’s Certificate stating that it is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to its
right so to redeem have been satisfied and (b) an opinion of an
independent legal counsel of recognized standing to the effect that the Issuers
have been or will become obligated to pay Additional Amounts as a result of the
Change in Tax Law.


 


(6)                                  MANDATORY REDEMPTION.  The Company is not required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


(7)                                  REPURCHASE
AT THE OPTION OF THE HOLDER.


 


(a)                                  If there is a Change of
Control, the Company will be required to make an offer (a “Change of
Control Offer”) to each Holder to repurchase all or any part (equal
to $2,000 or an integral multiple of $1,000 in excess thereof) of each Holder’s
Notes at a purchase price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and Additional Interest, if
any, thereon to the date of purchase, subject to the rights of Holders on the
relevant record date to receive interest due on the relevant interest payment
date (the “Change of Control Payment”).  Within thirty days following any Change of
Control, the Company will mail a notice to each Holder setting forth the
procedures governing the Change of Control Offer as required by the Indenture.


 


(b)                                 If the Company or a
Restricted Subsidiary of the Company consummates any Asset Sales, when the
aggregate amount of Excess Proceeds exceeds $15.0 million, the Company will
commence an offer to all Holders of Notes and all holders of other First Lien
Obligations the provisions of which require the Company to redeem such Indebtedness
with proceeds from any Asset Sales (or offer to do so) (an “Asset Sale Offer”) pursuant to Section 3.08 of the
Indenture to purchase the maximum principal amount of Notes (including any
Additional Notes) and such other First Lien Obligations 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 thereof plus accrued and unpaid interest and Additional
Interest, if any, thereon to the date of purchase, in accordance with the procedures
set forth in the Indenture.  To the
extent that the aggregate amount of Notes (including any Additional Notes) and
other First Lien Obligations tendered pursuant to an Asset Sale Offer is less
than the Excess Proceeds, the Company (or such Restricted Subsidiary) may use
such deficiency for general corporate purposes not otherwise prohibited by the
Indenture.  If the aggregate principal
amount of Notes tendered into such Asset Sale Offer exceeds the amount of
Excess Proceeds allocable to the Notes, the Trustee shall select the Notes to
be purchased on a pro  rata
basis.  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” attached
to the Notes.


 


A-4

















 


(c)                                  When the aggregate amount of
Excess Loss Proceeds exceeds $15.0 million, the Issuers shall make an offer (an
“Event of Loss Offer”) to all Holders to
purchase or redeem the Notes with the proceeds from the Event of Loss in an
amount equal to the maximum principal amount of Notes that may be purchased out
of the Excess Loss Proceeds.  The Event
of Loss Offer shall be made in accordance with Section 4.19 of the
Indenture.


 


(8)                                  NOTICE OF REDEMPTION.  Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address, 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 defeasance of the Notes or a
satisfaction or discharge of the Indenture. 
Notes in denominations larger than $2,000 may be redeemed in part but
only in whole multiples of $2,000 and integral multiples of $1,000 in excess
thereof, unless all of the Notes held by a Holder are to be redeemed.


 


(9)                                  DENOMINATIONS, TRANSFER, EXCHANGE.  The Notes are in registered form without coupons
in denominations of $2,000 and integral multiples of $1,000 in excess
thereof.  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 and fees
required by law or permitted by the Indenture. 
The Company 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,
the Company need not exchange or register the transfer of any Notes for a
period of 15 days before a selection of Notes to be redeemed or during the
period between a record date and the corresponding Interest Payment Date.


 


(10)                            PERSONS DEEMED OWNERS.  The registered Holder of a Note may be
treated as its owner for all purposes.


 


(11)                            AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to certain exceptions, the Indenture,
the Collateral Documents, the Intercreditor Agreement, the Registration Rights
Agreement, the Notes, the Parent Guarantee, the Canadian Subsidiary Guarantee
or the Note Guarantees may be amended or supplemented with the consent of the
Holders of at least a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class,
and any existing Default or Event of Default or compliance with any provision
of the Indenture, the Collateral Documents, the Intercreditor Agreement, the
Registration Rights Agreement, the Notes or the Note Guarantees may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the then outstanding Notes including Additional Notes, if any, voting as a
single class.  Without the consent of any
Holder of a Note, the Indenture, the Intercreditor Agreement, the Collateral
Documents, the Notes, any Note Guarantee or the Registration Rights Agreement
may be amended or supplemented (i) to cure any ambiguity, defect or
inconsistency; (ii) to provide for uncertificated Notes in addition to or
in place of certificated Notes; (iii) to provide for the assumption of an
Issuer’s or a Guarantor’s obligations under the Indenture, the Collateral
Documents, the Notes, the Intercreditor Agreement, the Registration Rights
Agreement, the Parent Guarantee, the Canadian Subsidiary Guarantee, the Issuers’
Guarantee and the Note Guarantees to the Holders in the case of a merger,
consolidation or sale of all or substantially all of such Issuer’s or such
Guarantor’s assets; (iv) to release any Guarantor from any of its
obligations under its Note Guarantee, the Canadian Subsidiary Guarantee or 


 


A-5

















 


the Indenture (to the extent permitted by the
Indenture); (v) to make any change that would provide any additional
rights or benefits to the Holders or that does not materially adversely affect
the rights under the Indenture of any such Holder; (vi) to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; (vii) to conform the text of the Indenture, any
Collateral Document, any Note Guarantee, the Intercreditor Agreement or the
Notes to any provision of the “Description of Notes” section of the Offering
Memorandum to the extent that such provision in the “Description of Notes”
section of the Offering Memorandum was intended to be a verbatim recitation of
a provision of the Indenture, any Collateral Document, any Note Guarantee, the
Intercreditor Agreement or the Notes, which intent may be evidenced by an
Officer’s Certificate to that effect; (viii) to enter into additional or
supplemental Collateral Documents; (ix) to provide for the issuance of
Additional Notes in accordance with the limitations set forth in the Indenture
as of the date of the Indenture; (x) to allow any Guarantor to execute a
supplemental indenture, a supplement to the Canadian Subsidiary Guarantee
and/or a Note Guarantee with respect to the Notes; (xi) to release Collateral
as permitted or required by the Collateral Documents or by Article 8 of
the Indenture; (xii) to add assets to Collateral to secure First Lien
Obligations or to amend the Collateral Documents to secure additional First
Lien Obligations to the extent such obligations are permitted under the Indenture;
and (xiii) to evidence and provide for the appointment of a successor trustee
or collateral agent.


 


(12)                            DEFAULTS AND REMEDIES.  Events of Default include:  (i) failure by the Issuers to pay interest
on any of the Notes when it becomes due and payable and the continuance of any
such failure for 30 days; (ii) failure by the Issuers to pay the principal
on any of the Notes when it becomes due and payable, whether at Stated
Maturity, upon redemption, upon purchase, upon acceleration or otherwise; (iii) failure
by the Company or any of its Restricted Subsidiaries to comply with Section 4.15
or Section 5.01 of the Indenture; (iv) failure by an Issuer or a
Guarantor to comply with any other agreement or covenant in the Indenture or
the Collateral Documents and continuance of this failure for 60 days after
notice of the failure has been given to the Company by the Trustee or by the
Holders of at least 25% of the aggregate principal amount of the Notes then
outstanding; (v) default under any mortgage, indenture or other instrument
or agreement under which there may be issued or by which there may be secured
or evidenced Indebtedness for money borrowed by the Company or any Restricted
Subsidiary (or the payment of which is guaranteed by the Company or any Restricted
Subsidiary), whether such Indebtedness now exists or is incurred after the
Issue Date, which default:  (a) is
caused by a failure to pay at final maturity principal on such Indebtedness
within the applicable express grace period and any extensions thereof, (b) results
in the acceleration of such Indebtedness prior to its express final maturity,
or (c) results in the commencement of judicial proceedings to foreclose
upon, or to exercise remedies under applicable law or applicable security
documents to take ownership of, the assets securing such Indebtedness, and in
each case, the principal amount of such Indebtedness, together with any other Indebtedness
with respect to which an event described in clause (a), (b) or (c) has
occurred and is continuing, aggregates $15.0 million or more; (vi) one or
more final judgments or orders that exceed $15.0 million in the aggregate (net
of amounts covered by insurance or bonded) for the payment of money have been
entered by a court or courts of competent jurisdiction against the Company or
any Restricted Subsidiary and such judgment or judgments have not been satisfied,
stayed, annulled or rescinded within 60 days of being entered; (vii) the
Company or any Significant Subsidiary pursuant to or within the meaning of any
Bankruptcy Law:  (a) commences a
voluntary case or proceeding, (b) consents to the entry of an order for
relief against 


 


A-6

















 


it in an involuntary case or proceeding, (c) consents
to the appointment of a Custodian of it or for all or substantially all of its
assets, or (d) makes a general assignment for the benefit of its creditors;
(viii) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:  (a) is for
relief against the Company or any Significant Subsidiary as debtor in an involuntary
case or proceeding, (b) appoints a Custodian of the Company or any
Significant Subsidiary or a Custodian for all or substantially all of the
assets of the Company or any Significant Subsidiary, or (c) orders the
liquidation of the Company or any Significant Subsidiary, and the order or decree
remains unstayed and in effect for 60 days; (ix) any Note Guarantee of any
Significant Subsidiary ceases to be in full force and effect (other than in
accordance with the terms of such Note Guarantee and the Indenture) or is
declared null and void and unenforceable or found to be invalid or any
Guarantor denies in writing its liability under its Note Guarantee (other than
by reason of release of a Guarantor from its Note Guarantee in accordance with
the terms of the Indenture and the Note Guarantee); (x) any written
repudiation or disaffirmation by an Issuer or any Guarantor of any of its
obligations under the Collateral Documents; or (xi) with respect to any
Collateral (x) subject to a fixed charge (other than Rolling Stock) or (y) having
a fair market value in excess of $20.0 million, individually or in the
aggregate, (a) the security interest under the Collateral Documents, at
any time, ceases to be in full force and effect for any reason other than in
accordance with the terms of the Indenture, the Collateral Documents and the
Intercreditor Agreement, (b) any security interest created thereunder or
under the Indenture is declared invalid or unenforceable by a court of
competent jurisdiction or (c) any Issuer or any Guarantor asserts, in any
pleading in any court of competent jurisdiction, that any such security
interest is invalid and unenforceable. 
If an Event of Default (other than an Event of Default specified in
clause (vii) or (viii) above with respect to the Company) shall have
occurred and be continuing, the Trustee, by written notice to the Company, or
the Holders of at least 25% in aggregate principal amount of the then
outstanding Notes may declare all the Notes to be due and payable immediately.  Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes will become due and payable immediately without further
action or notice.  Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.  Subject to certain limitations, Holders of a
majority in aggregate principal amount of the then outstanding Notes may direct
the Trustee in its exercise of any trust or power.  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 or interest or premium or
Additional Interest, if any,) if it determines that withholding notice is in
their interest.  The Holders of a majority
in aggregate principal amount of the then outstanding Notes by notice to the
Trustee may, on behalf of the Holders of all of the Notes, rescind an
acceleration or waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of
Default in the payment of interest or premium or Additional Interest, if any,
on, or the principal of, the Notes.  The
Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is 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.


 


(13)                            TRUSTEE DEALINGS WITH COMPANY.  The Trustee, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not the Trustee.


 


A-7

















 


(14)                            COLLATERAL DOCUMENTS AND
INTERCREDITOR AGREEMENT.  The
obligations of the Company and the Guarantors under the Indenture, the Notes
and the Note Guarantees are secured by a Lien on the Collateral pursuant to the
Collateral Documents.  The provisions of
the Indenture and the Collateral Documents are subject to the Intercreditor
Agreement.


 


(15)                            NO RECOURSE AGAINST OTHERS.  A director, officer, employee, incorporator
or stockholder of the Company or any Guarantors, as such, will not have any
liability for any obligations of the Company or the Guarantors under the Notes,
the Note 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.  The waiver may not be effective to waive
liabilities under the federal securities laws.


 


(16)                            AUTHENTICATION.  This Note will not be valid until authenticated
by the manual signature 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)                            ADDITIONAL RIGHTS OF HOLDERS OF
RESTRICTED GLOBAL NOTES AND RESTRICTED DEFINITIVE NOTES.  In addition to the rights provided to Holders
of Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes will have all the rights set forth in the Registration Rights
Agreement dated as of May 27, 2009 among the Company, the Guarantor and
the other parties named on the signature pages thereof, as such agreement
may be amended, modified or supplemented from time to time and, with respect to
any Additional Notes, Holders of Restricted Global Notes and Restricted
Definitive Notes will have the rights set forth in one or more registration
rights agreements, if any, among the Company, the Guarantors and the other
parties thereto, as such agreement(s) may be amended, modified or supplemented
from time to time, relating to rights given by the Company to the purchasers of
Additional Notes to register such Additional Notes under the Securities Act
(collectively, the “Registration Rights
Agreement”).


 


(19)                            CUSIP NUMBERS.  Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP 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.


 


(20)                            GOVERNING LAW.  THE INTERNAL LAW OF THE STATE OF NEW YORK
WILL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTATIONS
OF NOTE GUARANTEE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.


 


A-8

















 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture, the Security Agreement, the Intercreditor Agreement
and/or the Registration Rights Agreement. 
Requests may be made to:


 


Gibson Energy ULC


1700,
440 2nd Avenue SW


Calgary,
Alberta T2P 5E9


Canada


Attention: 
Vice President and General Counsel


Telecopier No.: +1 (403)
206-4011


 


A-9

















 


ASSIGNMENT FORM


 


	
  To assign this Note, fill in the form below:

  
	
   

  	
   

  
	
  (I) or
  (we) assign and transfer this Note to:

  	
   

  
	
   

  	
  (Insert
  assignee’s legal name)

  
	
   

  
	
   

  
	
  (Insert assignee’s soc. sec. or tax I.D. no.)

  
	
   

  
	
   

  
	
   

  
	
   

  
	
   

  
	
  (Print or type assignee’s name, address and zip
  code)

  
	
   

  	
   

  
	
  and irrevocably appoint

  	
   

  
	
  to transfer this Note on the books of the Company.
  The agent may substitute another to act for him.

  
	
   

  
	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
  (Sign exactly as your name appears on the face of this Note)

  
	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  
								



 






*                                         Participant in
a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-10














 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10, 4.15 or 4.19 of the Indenture, check
the appropriate box below:


 


	
  o   Section 4.10

  	
  o   Section 4.15

  	
  o   Section 4.19

  



 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10, Section 4.15 or Section 4.19
of the Indenture, state the amount you elect to have purchased:


 


$                    


 


 


	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Your
  Signature:

  	
   

  
	
   

  	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face of this Note)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Tax
  Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  
							



 






*                                         Participant in
a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A-11

















 


SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*


 


The following exchanges of a part of this Global
Note for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest
in this Global Note, have been made:


 


	
  Date
  of Exchange

  	
   

  	
  Amount of decrease

  in Principal Amount

  of this Global Note

  	
   

  	
  Amount of increase

  in Principal Amount

  of this Global Note

  	
   

  	
  Principal Amount of

  this Global Note

  following such

  decrease (or increase)

  	
   

  	
  Signature of

  authorized officer

  of Trustee or

  Custodian

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*              This
schedule should be included only if the Note is issued in global form.


 


A-12

















 


EXHIBIT B


 


FORM OF CERTIFICATE OF
TRANSFER


 


Gibson
Energy ULC


1700, 440 2nd Avenue SW


Calgary, Alberta T2P 5E9


Canada


Attention:  Vice President and General Counsel


 


The
Bank of New York Mellon, as Registrar

101 Barclay Street 4E

New York, NY 10286


Attention:  Corporate Trust Division - Global Finance
Americas


 


 


Re:  11.75%
First Lien Senior Secured Notes due 2014


 


Reference is hereby made to the Indenture, dated as
of May 27, 2009 (the “Indenture”),
among Gibson Energy ULC, an Alberta unlimited liability corporation (the “Company”), GEP Midstream Finance Corp., an Alberta
corporation (“Finance Corp.” and, together with
the Company, the “Issuers”), each of the Guarantors
and The Bank of New York Mellon, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                              (the
“Transferor”) owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $                       
in such Note[s] or interests (the “Transfer”),
to                                                         
(the “Transferee”), as further specified in
Annex A hereto.  In connection with the
Transfer, the Transferor hereby certifies that:


 


[CHECK
ALL THAT APPLY]


 


1.  o  Check if Transferee will
take delivery of a beneficial interest in the 144A Global Note or a Restricted
Definitive Note pursuant to Rule 144A.  The Transfer is being effected pursuant to
and in accordance with Rule 144A under the Securities Act of 1933, as
amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect
to which such Person exercises sole investment discretion, and such Person and
each such account is a “qualified institutional buyer” within the meaning of Rule 144A
in a transaction meeting the requirements of Rule 144A, and such Transfer
is in compliance with any applicable blue sky securities laws of any state of
the United States.  Upon consummation of
the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the 144A Global
Note and/or the Restricted Definitive Note and in the Indenture and the
Securities Act.


 


B-1

















 


2.  o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S Global Note or a
Restricted Definitive Note pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the Securities Act
and, accordingly, the Transferor hereby further certifies that (i) the
Transfer is not being made to a Person in the United States and (x) at the
time the buy order was originated, the Transferee was outside the United States
or such Transferor and any Person acting on its behalf reasonably believed and
believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on
its behalf knows that the transaction was prearranged with a buyer in the
United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S under the Securities Act, (iii) the transaction is not part
of a plan or scheme to evade the registration requirements of the Securities
Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than an Initial
Purchaser).  Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.


 


3.  o  Check and complete if
Transferee will take delivery of a beneficial interest in the IAI Global Note
or a Restricted Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A or Regulation S.  The Transfer is being effected in compliance
with the transfer restrictions applicable to beneficial interests in Restricted
Global Notes and Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act and any applicable blue sky securities laws of any
state of the United States, and accordingly the Transferor hereby further certifies
that (check one):


 


(a)           o  such Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act;


 


or


 


(b)           o  such Transfer is being effected to the
Company or a subsidiary thereof;


 


or


 


(c)           o  such Transfer is being effected pursuant to
an effective registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act;


 


or


 


(d)           o  such Transfer is being effected to an
Institutional Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144,
Rule 903 or Rule 904, and the Transferor hereby further certifies
that it has not engaged in any general solicitation within the meaning of Regulation
D under the Securities Act and the Transfer complies with the transfer
restrictions 


 


B-2

















 


applicable to beneficial
interests in a Restricted Global Note or Restricted Definitive Notes and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) if such Transfer is in respect of a principal amount of
Notes at the time of transfer of less than $250,000, an Opinion of Counsel
provided by the Transferor or the Transferee (a copy of which the Transferor
has attached to this certification), to the effect that such Transfer is in
compliance with the Securities Act.  Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the IAI Global Note and/or the Restricted Definitive Notes and in
the Indenture and the Securities Act.


 


4.  o  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Note or of an
Unrestricted Definitive Note.


 


(a)           o  Check if Transfer is
pursuant to Rule 144. 
(i) The Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities
laws of any state of the United States and (ii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.


 


(b)           o  Check if Transfer is
Pursuant to Regulation S. 
(i) The Transfer is being effected pursuant to and in accordance with
Rule 903 or Rule 904 under the Securities Act and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any state of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities
Act.  Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.


 


(c)           o   Check if Transfer is
Pursuant to Other Exemption. 
(i) The Transfer is being effected pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue
sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.  Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.


 


B-3

















 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  
						



 






*                                         Participant in
a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


 


B-4

















 


ANNEX A TO CERTIFICATE OF TRANSFER


 


1.             The
Transferor owns and proposes to transfer the following:


 


[CHECK
ONE OF (a) OR (b)]


 


(a)           o  a beneficial interest in the:


 


(i)            o  144A Global Note (CUSIP                   ),
or


 


(ii)             o  Regulation S Global Note (CUSIP                 ),
or


 


(iii)             o  IAI Global Note (CUSIP                    );
or


 


(b)           o  a Restricted Definitive Note.


 


2.             After
the Transfer the Transferee will hold:


 


[CHECK
ONE]


 


(a)           o  a beneficial interest in the:


 


(i)            o  144A Global Note (CUSIP                  ),
or


 


(ii)             o  Regulation S Global Note (CUSIP                  ),
or


 


(iii)             o  IAI Global Note (CUSIP                   );
or


 


(iv)             o  Unrestricted Global Note (CUSIP                   );
or


 


(b)           o  a Restricted Definitive Note; or


 


(c)           o  an Unrestricted Definitive Note,


 


in accordance with the terms of the Indenture.


 


B-5














 


EXHIBIT C


 


FORM OF CERTIFICATE OF
EXCHANGE


 


Gibson
Energy ULC


1700, 440 2nd Avenue SW


Calgary, Alberta T2P 5E9


Canada


Attention:  Vice President and General Counsel


 


The
Bank of New York Mellon, as Registrar


101
Barclay Street 4E


New
York, NY 10286


Attention:  Corporate Trust Division - Global Finance
Americas


 


Re:  11.75%
First Lien Senior Secured Notes due 2014


 


	
   

  	
  (CUSIP
                         )

  



 


Reference is hereby made to the Indenture, dated as
of May 27, 2009 (the “Indenture”),
among Gibson Energy ULC, an Alberta unlimited liability corporation (the “Company”), GEP Midstream Finance Corp., an Alberta
corporation (“Finance Corp.” and, together with
the Company, the “Issuers”), each of the Guarantors
and The Bank of New York Mellon, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


                                                     (the
“Owner”) owns and proposes to exchange
the Note[s] or interest in such Note[s] specified herein, in the principal
amount of
$                        
in such Note[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             Exchange of Restricted Definitive Notes or
Beneficial Interests in a Restricted Global Note for Unrestricted Definitive
Notes or Beneficial Interests in an Unrestricted Global Note


 


(a)           o  Check if Exchange is from
beneficial interest in a Restricted Global Note to beneficial interest in an
Unrestricted Global Note.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an
equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
Securities Act of 1933, as amended (the “Securities Act”),
(iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest in an Unrestricted
Global Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


C-1

















 


(b)           o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Unrestricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted
Global Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.


 


(c)           o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in an Unrestricted Global
Note.  In connection with the
Owner’s Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner’s own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.


 


(d)           o  Check if Exchange is from
Restricted Definitive Note to Unrestricted Definitive Note.  In connection with the Owner’s Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.             Exchange of Restricted Definitive Notes or
Beneficial Interests in Restricted Global Notes for Restricted Definitive Notes
or Beneficial Interests in Restricted Global Notes


 


(a)           o  Check if Exchange is from
beneficial interest in a Restricted Global Note to Restricted Definitive Note.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a Restricted Definitive
Note with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Note is being acquired for the Owner’s own account
without transfer.  Upon consummation of
the proposed Exchange in accordance with the terms of the Indenture, the
Restricted Definitive Note issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Note and in the Indenture and the Securities Act.


 


(b)           o  Check if Exchange is from
Restricted Definitive Note to beneficial interest in a Restricted Global Note.  In connection with the Exchange of the Owner’s
Restricted Definitive Note for a beneficial interest in the [CHECK ONE] o 144A Global
Note, o Regulation 


 


C-2

















 


S Global Note, o IAI Global
Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any state of the United States.  Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the beneficial interest issued will
be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Company.


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
						






 






*                                         Participant in
a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


C-3

















 


EXHIBIT D


 


FORM OF CERTIFICATE FROM


ACQUIRING INSTITUTIONAL
ACCREDITED INVESTOR


 


Gibson
Energy ULC


1700, 440 2nd Avenue SW


Calgary, Alberta T2P 5E9


Canada


Attention:  Vice President and General Counsel


 


The
Bank of New York Mellon, as Registrar


101
Barclay Street 4E


New
York, NY 10286


Attention:
Corporate Trust Division - Global Finance Americas


 


Re:  11.75%
First Lien Senior Secured Notes due 2014


 


Reference is hereby made to the Indenture, dated as
of May 27, 2009 (the “Indenture”),
among Gibson Energy ULC, an Alberta unlimited liability corporation (the “Company”), GEP Midstream Finance Corp., an Alberta
corporation (“Finance Corp.” and, together with
the Company, the “Issuers”), each of the Guarantors
and The Bank of New York Mellon, as trustee. 
Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.


 


In connection with our proposed purchase of
$                        
aggregate principal amount of:


 


(a)           o  a beneficial interest in a Global Note, or


 


(b)           o  a Definitive Note,


 


we confirm that:


 


1.             We
understand that any subsequent transfer of the Notes or any interest therein is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes or any interest therein except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).


 


2.             We
understand that the offer and sale of the Notes have not been registered under
the Securities Act, and that the Notes and any interest therein may not be
offered or sold except as permitted in the following sentence.  We agree, on our own behalf and on behalf of
any accounts for which we are acting as hereinafter stated, that if we should
sell the Notes or any interest therein, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A
under the Securities Act to a “qualified institutional buyer” (as defined
therein), 


 


D-1

















 


(C) to an institutional
“accredited investor” (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to you and to the
Company a signed letter substantially in the form of this letter and, if such
transfer is in respect of a principal amount of Notes, at the time of transfer
of less than $250,000, an Opinion of Counsel in a form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule 144(k) under
the Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any Person
purchasing the Definitive Note or beneficial interest in a Global Note from us
in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.


 


3.             We
understand that, on any proposed resale of the Notes or beneficial interest
therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions.  We further
understand that the Notes purchased by us will bear a legend to the foregoing
effect.


 


4.             We
are an institutional “accredited investor” (as defined in Rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Notes, and
we and any accounts for which we are acting are each able to bear the economic
risk of our or its investment.


 


5.             We
are acquiring the Notes or beneficial interest therein purchased by us for our
own account or for one or more accounts (each of which is an institutional “accredited
investor”) as to each of which we exercise sole investment discretion.


 


6.             To
the extent that we are a Canadian purchaser, our purchase of the Notes is in
compliance with Canadian securities laws.


 


You and the Company are entitled to rely upon this
letter and are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby.


 




	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Name of Accredited Investor]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
  Dated:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
						






 


D-2

















 






*                                         Participant in
a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).


 


D-3

















 


EXHIBIT E


 


FORM OF NOTATION OF
GUARANTEE


 


For value received, each U.S. Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in and subject to the
provisions in the Indenture dated as of May 27, 2009 (the “Indenture”) among Gibson Energy ULC, an Alberta unlimited
liability corporation (the “Company”), GEP Midstream Finance Corp., an Alberta
corporation (“Finance Corp.” and, together with
the Company, the “Issuers”), and the Bank of New
York Mellon, as trustee (the “Trustee”), (a) the
due and punctual payment of the principal of, premium and Additional Interest,
if any, and interest on, the Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of and interest on the Notes, if any, if lawful, and the due and
punctual performance of all other obligations of the Company to the Holders or
the Trustee all in accordance with the terms of the Indenture and (b) in
case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. 
The obligations of the U.S. Guarantors to the Holders of Notes and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article 10 of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee.


 


Capitalized terms used but not defined herein have
the meanings given to them in the Indenture.


 


	
   

  	
  [NAME
  OF GUARANTOR(S)]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


E-1

















 


EXHIBIT F


 


FORM OF SUPPLEMENTAL
INDENTURE


TO BE DELIVERED BY
SUBSEQUENT GUARANTORS


 


Supplemental Indenture (this “Supplemental
Indenture”), dated as of                                 ,
20    , among                                     
(the “Guaranteeing Subsidiary”), a subsidiary
of Gibson Energy ULC, an Alberta unlimited liability corporation (the “Company”), the Company, GEP Midstream Finance Corp., an
Alberta corporation (the “Finance Corp.”),
the other Guarantors (as defined in the Indenture referred to herein), BNY
Trust Company of Canada, as collateral agent under the Indenture referred to
below and the Collateral Documents, and The Bank of New York Mellon, as trustee
under the Indenture referred to below (the “Trustee”).


 


W
I T N E S S E T H


 


WHEREAS, the Company, Finance Corp. and the
Guarantors have heretofore executed and delivered to the Trustee and the
Collateral Agent an indenture (the “Indenture”),
dated as of May 27, 2009, providing for the issuance of 11.75% First Lien
Senior Secured Notes due 2014 (the “Notes”), as
supplemented;


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee and the Collateral Agent a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the “Guarantee”);
and


 


WHEREAS, pursuant to Section 9.01 of the
Indenture, the Trustee and the Collateral Agent are authorized to execute and
deliver this Supplemental Indenture.


 


NOW, THEREFORE, in consideration of the foregoing
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Guaranteeing Subsidiary, the Company, Finance Corp., the
Guarantors, the Collateral Agent 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
OF U.S. SUBSIDIARIES TO GUARANTEE.  The
Guaranteeing Subsidiary, if it is a U.S. Subsidiary, hereby agrees to and does
hereby provide an unconditional guarantee on the terms and subject to the
conditions set forth in the Guarantee and in the Indenture including but not
limited to Article 10 thereof.


 


3.             NO
RECOURSE AGAINST OTHERS.  No director,
officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary,
as such, shall have any liability for any obligations of the Company, Finance
Corp., the Guarantors or any Guaranteeing Subsidiary under the Notes, any
Guarantees, the Indenture or this 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


 


F-1

















 


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.


 


4.             NEW
YORK LAW TO GOVERN.  THE INTERNAL LAW OF
THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL
INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO
THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


5.             COUNTERPARTS.  The parties may sign any number of copies of
this Supplemental Indenture.  Each signed
copy shall be an original, but all of them together represent the same agreement.


 


6.             EFFECT
OF HEADINGS.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


7.             THE
TRUSTEE AND THE COLLATERAL AGENT. 
Neither the Trustee nor the Collateral Agent shall be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Subsidiary, the
Company, Finance Corp. and the Guarantors.


 


F-2














 


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.


 


Dated: 
                              ,
20       


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON
  ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP
  MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON
  ENERGY (U.S.) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LINK
  PETROLEUM, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


F-3

















 


	
   

  	
  MOOSE
  JAW REFINERY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson
  Energy ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson
  Energy ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson
  Energy ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  



 


F-4

















 


	
   

  	
  GIBSON
  ENERGY PARTNERSHIP

  
	
   

  	
  by
  its managing partner,

  
	
   

  	
  Gibson
  Energy ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE
  RIVER TERMINAL LP

  
	
   

  	
  by
  its general partner,

  
	
   

  	
  Battle
  River Terminal GP Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  



 


F-5

















 


	
   

  	
  BATTLE
  RIVER TERMINAL GP INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRIDGE
  CREEK TRUCKING LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BNY
  TRUST COMPANY OF CANADA,

  
	
   

  	
  as
  Collateral Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  BANK OF NEW YORK MELLON.

  
	
   

  	
  as
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


F-6

















 


EXHIBIT
G-1


 


FORM OF
PARENT GUARANTEE


 


(Attached)


 


G-1-1

















 


EXHIBIT
G-2


 


FORM OF
CANADIAN SUBSIDIARY GUARANTEE


 


(Attached)


 


G-2-1

















 


EXHIBIT
G-3


 


FORM OF
ISSUERS’ GUARANTEE


 


(Attached)


 


G-3-1