Exhibit 4.14




 





 


GIBSON ENERGY ULC,


 


GEP MIDSTREAM FINANCE CORP.


 


AND EACH OF THE PARTIES THAT BECOME GUARANTORS HERETO


 


10.00% SENIOR NOTES DUE 2018


 


	
   

  	
   

  	
   

  
	
   

  	
  INDENTURE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated as of January 19, 2010

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE BANK OF NEW YORK MELLON

  
	
   

  	
   

  	
   

  
	
   

  	
  Trustee

  	
   

  
	
   

  	
   

  	
   

  





 





 

















 


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)

  	
   

  	
  N.A.

  
	
  (b)(2)

  	
   

  	
  7.06; 7.07

  
	
  (c)

  	
   

  	
  7.06; 12.02

  
	
  (d)

  	
   

  	
  7.06

  
	
  314(a)

  	
   

  	
  4.03;12.02; 12.05

  
	
  (b)

  	
   

  	
  N.A.

  
	
  (c)(1)

  	
   

  	
  12.04

  
	
  (c)(2)

  	
   

  	
  12.04

  
	
  (c)(3)

  	
   

  	
  N.A.

  
	
  (d)

  	
   

  	
  N.A.

  
	
  (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

  	
  35

  
	
  Section 1.03.

  	
  Incorporation
  by Reference of Trust Indenture Act

  	
  36

  
	
  Section 1.04.

  	
  Rules of
  Construction

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  THE NOTES

  
	
   

  	
   

  	
   

  
	
  Section 2.01.

  	
  Form and
  Dating

  	
  37

  
	
  Section 2.02.

  	
  Execution
  and Authentication

  	
  38

  
	
  Section 2.03.

  	
  Registrar
  and Paying Agent

  	
  39

  
	
  Section 2.04.

  	
  Paying
  Agent to Hold Money in Trust

  	
  39

  
	
  Section 2.05.

  	
  Holder
  Lists

  	
  39

  
	
  Section 2.06.

  	
  Transfer
  and Exchange

  	
  40

  
	
  Section 2.07.

  	
  Replacement
  Notes

  	
  54

  
	
  Section 2.08.

  	
  Outstanding
  Notes

  	
  54

  
	
  Section 2.09.

  	
  Treasury
  Notes

  	
  55

  
	
  Section 2.10.

  	
  Temporary
  Notes

  	
  55

  
	
  Section 2.11.

  	
  Cancellation

  	
  55

  
	
  Section 2.12.

  	
  Defaulted
  Interest

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REDEMPTION AND PREPAYMENT

  
	
   

  	
   

  	
   

  
	
  Section 3.01.

  	
  Notices
  to Trustee

  	
  56

  
	
  Section 3.02.

  	
  Selection
  of Notes to Be Redeemed or Purchased

  	
  56

  
	
  Section 3.03.

  	
  Notice
  of Redemption

  	
  57

  
	
  Section 3.04.

  	
  Effect
  of Notice of Redemption

  	
  58

  
	
  Section 3.05.

  	
  Deposit
  of Redemption or Purchase Price

  	
  58

  
	
  Section 3.06.

  	
  Notes
  Redeemed or Purchased in Part

  	
  58

  
	
  Section 3.07.

  	
  Optional
  Redemption

  	
  58

  
	
  Section 3.08.

  	
  Offer
  to Purchase by Application of Excess Proceeds

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  
	
  Section 4.01.

  	
  Payment
  of Notes

  	
  61

  
	
  Section 4.02.

  	
  Maintenance
  of Office or Agency

  	
  62

  
	
  Section 4.03.

  	
  Reports

  	
  62

  
	
  Section 4.04.

  	
  Compliance
  Certificate

  	
  64

  



 


i

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 4.05.

  	
  Taxes

  	
  64

  
	
  Section 4.06.

  	
  Stay,
  Extension and Usury Laws

  	
  64

  
	
  Section 4.07.

  	
  Limitations
  on Restricted Payments

  	
  64

  
	
  Section 4.08.

  	
  Limitations
  on Dividend and Other Restrictions Affecting Restricted Subsidiaries

  	
  67

  
	
  Section 4.09.

  	
  Limitations
  on Additional Indebtedness

  	
  68

  
	
  Section 4.10.

  	
  Limitations
  on Asset Sales

  	
  71

  
	
  Section 4.11.

  	
  Limitations
  on Transactions with Affiliates

  	
  74

  
	
  Section 4.12.

  	
  Limitations
  on Liens

  	
  76

  
	
  Section 4.13.

  	
  Conduct
  of Business

  	
  76

  
	
  Section 4.14.

  	
  Corporate
  Existence

  	
  76

  
	
  Section 4.15.

  	
  Offer
  to Repurchase upon Change of Control

  	
  76

  
	
  Section 4.16.

  	
  Payments
  for Consent

  	
  78

  
	
  Section 4.17.

  	
  Additional
  Note Guarantees

  	
  78

  
	
  Section 4.18.

  	
  Limitation
  on Designation of Unrestricted Subsidiaries

  	
  79

  
	
  Section 4.19.

  	
  [Reserved]

  	
  80

  
	
  Section 4.20.

  	
  Limitation
  on Layering Indebtedness

  	
  80

  
	
  Section 4.21.

  	
  Limitations
  on Sale and Leaseback Transactions

  	
  80

  
	
  Section 4.22.

  	
  [Reserved]

  	
  81

  
	
  Section 4.23.

  	
  [Reserved]

  	
  81

  
	
  Section 4.24.

  	
  Limitations
  on Activities of Finance Corp.

  	
  81

  
	
  Section 4.25.

  	
  Additional
  Amounts

  	
  81

  
	
  Section 4.26.

  	
  [Reserved]

  	
  83

  
	
  Section 4.27.

  	
  [Reserved]

  	
  83

  
	
  Section 4.28.

  	
  Covenant
  Suspension

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  
	
  SUCCESSORS

  
	
   

  	
   

  	
   

  
	
  Section 5.01.

  	
  Merger,
  Consolidation, Etc.

  	
  84

  
	
  Section 5.02.

  	
  Successor
  Corporation Substituted

  	
  86

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  DEFAULTS AND REMEDIES

  
	
   

  	
   

  	
   

  
	
  Section 6.01.

  	
  Events
  of Default

  	
  86

  
	
  Section 6.02.

  	
  Acceleration

  	
  88

  
	
  Section 6.03.

  	
  Other
  Remedies

  	
  89

  
	
  Section 6.04.

  	
  Waiver
  of Past Defaults

  	
  89

  
	
  Section 6.05.

  	
  Control
  by Majority

  	
  89

  
	
  Section 6.06.

  	
  Limitation
  on Suits

  	
  89

  
	
  Section 6.07.

  	
  Rights
  of Holders of Notes to Receive Payment

  	
  90

  
	
  Section 6.08.

  	
  Collection
  Suit by Trustee

  	
  90

  
	
  Section 6.09.

  	
  Trustee
  May File Proofs of Claim

  	
  90

  
	
  Section 6.10.

  	
  Priorities

  	
  91

  



 


ii

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 6.11.

  	
  Undertaking
  for Costs

  	
  91

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  TRUSTEE

  
	
   

  	
   

  	
   

  
	
  Section 7.01.

  	
  Duties
  of Trustee

  	
  91

  
	
  Section 7.02.

  	
  Rights
  of Trustee

  	
  93

  
	
  Section 7.03.

  	
  Individual
  Rights of Trustee

  	
  94

  
	
  Section 7.04.

  	
  Trustee’s
  Disclaimer

  	
  94

  
	
  Section 7.05.

  	
  Notice
  of Defaults

  	
  94

  
	
  Section 7.06.

  	
  Reports
  by Trustee to Holders of the Notes

  	
  95

  
	
  Section 7.07.

  	
  Compensation
  and Indemnity

  	
  95

  
	
  Section 7.08.

  	
  Replacement
  of Trustee

  	
  97

  
	
  Section 7.09.

  	
  Successor
  Trustee by Merger, etc.

  	
  98

  
	
  Section 7.10.

  	
  Eligibility;
  Disqualification

  	
  98

  
	
  Section 7.11.

  	
  Preferential
  Collection of Claims Against Company

  	
  98

  
	
  Section 7.12.

  	
  Payment
  of Additional Interest

  	
  99

  
	
  Section 7.13.

  	
  Appointment
  of Co-Trustees

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  [RESERVED]

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9

  
	
  AMENDMENT, SUPPLEMENT AND
  WAIVER

  
	
   

  	
   

  	
   

  
	
  Section 9.01.

  	
  Without
  Consent of Holders of Notes

  	
  101

  
	
  Section 9.02.

  	
  With
  Consent of Holders of Notes

  	
  102

  
	
  Section 9.03.

  	
  Compliance
  with Trust Indenture Act

  	
  104

  
	
  Section 9.04.

  	
  Revocation
  and Effect of Consents

  	
  104

  
	
  Section 9.05.

  	
  Notation
  on or Exchange of Notes

  	
  104

  
	
  Section 9.06.

  	
  Trustee
  to Sign Amendments, etc.

  	
  104

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  GUARANTEES

  
	
   

  	
   

  	
   

  
	
  Section 10.01.

  	
  Guarantee

  	
  104

  
	
  Section 10.02.

  	
  Limitation
  on Guarantor Liability

  	
  106

  
	
  Section 10.03.

  	
  Execution
  and Delivery of Note Guarantee

  	
  106

  
	
  Section 10.04.

  	
  Guarantors
  May Consolidate, etc., on Certain Terms

  	
  106

  
	
  Section 10.05.

  	
  Releases

  	
  107

  
	
  Section 10.06.

  	
  Canadian
  Guarantees

  	
  108

  



 


iii

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11

  
	
  SATISFACTION AND DISCHARGE

  
	
   

  	
   

  	
   

  
	
  Section 11.01.

  	
  Satisfaction
  and Discharge

  	
  108

  
	
  Section 11.02.

  	
  Application
  of Trust Money

  	
  109

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  
	
  Section 12.01.

  	
  Trust
  Indenture Act Controls

  	
  110

  
	
  Section 12.02.

  	
  Notices

  	
  110

  
	
  Section 12.03.

  	
  Communication
  by Holders of Notes with Other Holders of Notes

  	
  112

  
	
  Section 12.04.

  	
  Certificate
  and Opinion as to Conditions Precedent

  	
  112

  
	
  Section 12.05.

  	
  Statements
  Required in Certificate or Opinion

  	
  113

  
	
  Section 12.06.

  	
  Rules by
  Trustee and Agents

  	
  113

  
	
  Section 12.07.

  	
  No
  Personal Liability of Directors, Officers, Employees and Stockholders

  	
  113

  
	
  Section 12.08.

  	
  Governing
  Law

  	
  113

  
	
  Section 12.09.

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

  	
  114

  
	
  Section 12.10.

  	
  No
  Adverse Interpretation of Other Agreements

  	
  114

  
	
  Section 12.11.

  	
  Successors

  	
  114

  
	
  Section 12.12.

  	
  Severability

  	
  114

  
	
  Section 12.13.

  	
  Counterpart
  Originals

  	
  114

  
	
  Section 12.14.

  	
  Table
  of Contents, Headings, etc.

  	
  114

  
	
  Section 12.15.

  	
  Interest
  Act

  	
  115

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13

  
	
  LEGAL DEFEASANCE AND
  COVENANT DEFEASANCE

  
	
   

  	
   

  	
   

  
	
  Section 13.01.

  	
  Option
  To Effect Legal Defeasance or Covenant Defeasance

  	
  115

  
	
  Section 13.02.

  	
  Legal
  Defeasance and Discharge

  	
  115

  
	
  Section 13.03.

  	
  Covenant
  Defeasance

  	
  116

  
	
  Section 13.04.

  	
  Conditions
  to Legal or Covenant Defeasance

  	
  116

  
	
  Section 13.05.

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

  	
  118

  
	
  Section 13.06.

  	
  Repayment
  to Issuers

  	
  118

  
	
  Section 13.07.

  	
  Reinstatement

  	
  118

  



 


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

  	
   

  



 


iv

















 


TABLE OF CONTENTS (Cont’d)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  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 January 19, 2010 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, a New York banking corporation, as trustee
(the “Trustee”).


 


The Issuers, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and ratable benefit of
the Holders (as defined) of the 10.00% Senior Notes due 2018 (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.


 


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


 


2

















 


(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 $8.0 million; and


 


(13)                            any transfer or
series of related transfers of assets constituting Liquidity Facility
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, the amount of Indebtedness represented
thereby will be determined in accordance with the definition of a “Capitalized
Lease Obligation.”


 


3

















 


“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, 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.


 


“Bridge Loans” means the indebtedness of the Company
outstanding under that certain $230.0 million first lien senior secured interim
credit agreement and $315.0 million second lien senior secured interim credit
agreement outstanding prior to the Refinancing Date and refinanced with the
proceeds of the offering of the First Lien Notes on the Refinancing Date.


 


“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.


 


“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.


 


6

















 


“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 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); plus


 


7

















 


(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 section “Offering Memorandum Summary—Summary
Historical Consolidated and Unaudited Pro Forma Condensed Consolidated
Financial Data” contained in the First Lien Notes Offering 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) associated with any such Asset Acquisition) occurring during the
Four-Quarter Period


 


8

















 


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,
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 


 


9

















 


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,


 


(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;


 


10






 










 


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


 


(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 loss (including the foreign exchange gain
resulting from the Refinancing), together with any related provision for taxes
on any such extraordinary or nonrecurring gain or 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 


 


11

















 


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.


 


“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.


 


“Consolidated Total Secured Indebtedness” means, as of any
date of determination, an amount equal to the aggregate principal amount of all
outstanding Indebtedness of the Company and the Restricted Subsidiaries that is
secured by Liens on assets of the Company or any Restricted Subsidiary
(including Equity Interests of a Restricted Subsidiary).


 


“Consolidated Total Secured Indebtedness Ratio” means, as of
any date of determination, the ratio of (a) Consolidated Total Secured
Indebtedness of the Company and the Restricted Subsidiaries on the date of
determination to (b) the aggregate amount of Consolidated Cash Flow during
the most recent four consecutive full fiscal quarters for which financial
statements are available ending on or prior to the date of the Lien incurrence
giving rise to the need to calculate the Consolidated Total Secured
Indebtedness Ratio, in each case with such pro forma adjustments to
Consolidated Total Secured Indebtedness and Consolidated Cash Flow as are
consistent with the pro forma adjustment provisions set forth in the definition
of Consolidated Interest Coverage Ratio.


 


“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.


 


“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.


 


12

















 


“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.


 


“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 


 


13

















 


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.


 


“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.


 


“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 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 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 Notes” means the notes issued under the First
Lien Notes Indenture.


 


14

















 


“First Lien Notes Documents” means the First Lien Notes, the
First Lien Notes Indenture, the Collateral Documents, (as defined in the First
Lien Notes Indenture) and the Intercreditor Agreement (as defined in the First
Lien Notes Indenture).


 


“First Lien Notes Indenture” means the Indenture dated as of May 27,
2009 by and among the Issuers, the Guarantors and The Bank of New York Mellon,
as Trustee.


 


“First Lien Notes Offering Memorandum” means the Offering
Memorandum dated as of May 21, 2009 with respect to the issuance of the
First Lien Notes by the Issuers.


 


“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 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.


 


15

















 


“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) 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;


 


16

















 


(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 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 


 


17

















 


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 $200.0 million aggregate principal amount of Notes issued under
this Indenture on the Issue Date.


 


“Initial Purchasers” means UBS Securities LLC,
Morgan Stanley & Co. Incorporated and RBC Capital Markets Corporation.


 


“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.


 


“Investment Grade Rating” means a rating equal to or higher
than Baa3 (or the equivalent) by Moody’s or BBB- (or the equivalent) by
S&P, or an equivalent rating by any other rating agency.


 


“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);


 


(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


 


18

















 


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.


 


“Joint Venture” means any Person that is not a direct or
indirect Subsidiary of a Company in which a Company or any of its Restricted
Subsidiaries makes any Investment.


 


“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
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 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
Collateral” means (i) inventory, receivables and intangibles
together with any and all related proceeds; (ii) cash, cash equivalents,
collections, currency, instruments, chattel paper, documents of title, checks,
letters of credit, bills, notes, acceptances, drafts, certificates of deposit,
treasury bills, investment certificates, commercial paper, other cash
equivalents, any other security or securities and moneys including, without
limitation, all of the Company’s and the Subsidiary Guarantors’ deposit and
other bank accounts, credits, and balances with the Liquidity Facility agent
and/or any of the lenders under any Liquidity Facility at any time existing,
and all claims of the Company or any Subsidiary Guarantor against any Liquidity
Facility lender; (iii) the Liquidity Facility lenders’ proportionate share
of proceeds from business interruption insurance and (iv) all proceeds on
or in respect of the foregoing now existing or hereafter arising.


 


“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


 


19

















 


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.


 


“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


 


(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.


 


“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


 


20

















 


(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).


 


“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.


 


“Offering
Memorandum” means the final offering memorandum dated January 13,
2010 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.


 


“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.


 


21














 


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


 


“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 Business Investments” means Investments by a
Company or any of its Restricted Subsidiaries in any Unrestricted Subsidiary of
a Company or in any Joint Venture, provided
that:


 


(1)           at
the time of such Investment and immediately thereafter, a Company could incur
$1.00 of additional Indebtedness under the Consolidated Interest Coverage Ratio
test set forth in Section 4.09(a); and


 


(2)           such
Unrestricted Subsidiary’s or Joint Venture’s activities are not outside that
scope of the Permitted Business.


 


“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;


 


22

















 


(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;


 


(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;


 


(16)         repurchases of the Notes;


 


23

















 


(17)         Permitted Business Investments not to
exceed 5.0% of Total Assets at any one time outstanding (with each Permitted
Business Investment being valued as of the date made and without regard to subsequent
changes in value); and


 


(18)         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 (18) 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 (18) above shall be deemed to be reduced:


 


(a)           upon
the disposition or repayment of or return on any Investment made pursuant to
clause (18) 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 previously decrease) the amount of Investments outstanding
pursuant to clause (18) 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;


 


(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


 


24

















 


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;


 


(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);


 


(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;


 


(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 


 


25

















 


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 Obligations under the First Lien Notes with respect to First Lien
Notes outstanding on the Issue Date and any Refinancing Indebtedness with
respect thereto;


 


(13)         Liens
on property and assets 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 Facility Collateral securing Obligations under a Liquidity Facility
and any Refinancing Indebtedness with respect thereto;


 


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


 


(16)         Liens
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;


 


26

















 


(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; 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)         Liens
serving the Notes or any trustees;


 


(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;


 


27

















 


(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; and


 


(33)         Liens
securing Indebtedness with a principal amount not to exceed the greater of (i) $55.0
million and (y) the amount that would cause, immediately after giving
effect to the incurrence of any such Lien on a pro forma
basis, the Consolidated Total Secured Indebtedness Ratio to exceed 3.0 to 1.0.


 


“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
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



 


28

















 


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 (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.


 


“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.


 


29

















 


“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
Facility Collateral (whether now existing or arising in the future) of the
Company or any of its Subsidiaries.


 


“Rating Agencies” means Moody’s and S&P.


 


“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” means the repayment by the Company on the Refinancing
Date of the Bridge Loans.


 


“Refinancing Date” means May 27, 2009, the date of the
repayment by the Company of the Bridge Loans.


 


“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:


 


(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;


 


30

















 


(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 the Initial Purchasers
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.


 


“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.


 


“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.


 


31














 


“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).


 


“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.


 


“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 


 


32

















 


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.


 


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


 


“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 Facility Collateral and that is
designated by the Board of Directors of the Company (as provided below) as a
Securitization Subsidiary (a) 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 Facility Collateral
securing such financing and (b) 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.


 


“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.


 


33

















 


“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).


 


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


 


“Subsidiary Guarantor”
means any Guarantor other than Parent.


 


“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.


 


“Total Assets” means the total assets of the Company and its
Restricted Subsidiaries, as set forth on the most recent consolidated balance
sheet of the Company and computed in accordance with GAAP


 


“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.


 


34

















 


“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 and (2) 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.


 


“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

  
	
  “Authentication Order”

  	
   

  	
  2.02

  



 


35

















 


	
  Term

  	
   

  	
  Defined in

  Section

  
	
  “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

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “Indemnitee”

  	
   

  	
  7.07(b)

  
	
  “Interest Payment Date”

  	
   

  	
  Exhibit A

  
	
  “Legal Defeasance”

  	
   

  	
  13.02

  
	
  “Net Proceeds Deficiency”

  	
   

  	
  4.10

  
	
  “Net Proceeds Offer”

  	
   

  	
  3.08

  
	
  “Offer Amount”

  	
   

  	
  3.08

  
	
  “Offer Period”

  	
   

  	
  3.08

  
	
  “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


 


36

















 


“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;


 


(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.


 


37

















 


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 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.  


 


38

















 


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.


 


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).


 


39

















 


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.


 


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


 


40

















 


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


 


(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


 


41














 


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 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


 


42

















 


(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.


 


(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 


 


43

















 


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 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


 


44

















 


(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 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;


 


45

















 


(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


 


(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;


 


46

















 


(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.


 


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 


 


47

















 


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 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 


 


48

















 


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.


 


(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.


 


49

















 


(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:


 


(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 


 


50

















 


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 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


 


51














 


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 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 


 


52

















 


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;


 


(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.


 


53

















 


(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 relating 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 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.


 


54

















 


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 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.


 


55

















 


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.


 


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.


 


56

















 


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.


 


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 


 


57

















 


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.


 


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 July 15, 2014, 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 period
subsequent to July 15, 2014 and each of the subsequent dates indicated:


 


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  Year

  	
   

  	
  Optional

  redemption price

  	
   

  
	
  July 15, 2014

  	
   

  	
  105.000

  	
  %

  
	
  January 15, 2015

  	
   

  	
  102.500

  	
  %

  
	
  January 15, 2016

  	
   

  	
  101.125

  	
  %

  
	
  January 15, 2017 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


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 January 15, 2013, the Issuers, at their option, may redeem up to
35% of the aggregate principal amount of the Notes issued under this Indenture
with the net cash proceeds of one or more Qualified Equity Offerings at a redemption
price equal to 110.000% 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); provided that any such redemption pursuant to this clause (d) of
this Section 3.07 may be made only with the cash proceeds of a Qualified
Equity Offering or the incurrence of Refinancing Indebtedness.  Notice of any such redemption must be given
within 60 days of the announcement or 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


 


(a)           In the event that, pursuant
to Section 4.10 hereof, the Company is required to commence an offer to
all Holders to purchase Notes (a “Net Proceeds Offer”),
it will follow the procedures specified below.


 


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(b)           The Net Proceeds Offer 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 Net Proceeds Offer
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 (the “Offer Amount”)
to the purchase of Notes and such other pari  passu unsubordinated Indebtedness of an Issuer or a
Restricted Subsidiary (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
Net Proceeds Offer.  Payment for any
Notes so purchased will be made in the same manner as interest payments are
made.


 


(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 Net Proceeds Offer.


 


(d)           Upon the commencement of a
Net Proceeds Offer, 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 Net Proceeds Offer.  The notice, which will govern the terms of
the Net Proceeds Offer will state:


 


(1)           that the Net
Proceeds Offer is being made pursuant to this Section 3.08 and Section 4.10
hereof, and the length of time the Net Proceeds 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 Net Proceeds Offer will cease to accrue interest after the
Purchase Date;


 


(5)           that Holders
electing to have a Note purchased pursuant to a Net Proceeds Offer 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 Net Proceeds Offer 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;


 


60














 


(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
unsubordinated Indebtedness of an Issuer or a Restricted Subsidiary 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 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 Net Proceeds 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 Net Proceeds Offer 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 one Business Day prior to 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 


 


61

















 


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.


 


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;


 


62

















 


(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.


 


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).


 


63

















 


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 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:


 


64

















 


(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):


 


(A)          50% of
Consolidated Net Income for the period (taken as one accounting period)
commencing on January 1, 2010 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 Refinancing Date or (y) from the issuance and sale of
Qualified Equity Interests after the Refinancing 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 $15.0
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 $25.0 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
Refinancing 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 Refinancing 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 


 


65

















 


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.


 


(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, or (c) upon a Change of Control or 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;


 


(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 


 


66

















 


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;


 


(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; and


 


(8)           other
Restricted Payments in an aggregate amount not to exceed $40.0 million per annum;


 


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 this Indenture, the Notes and the Note Guarantees;


 


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


 


67

















 


(4)           encumbrances or
restrictions existing under agreements existing on the Issue Date (including,
without limitation, any Liquidity Facility and the First Lien Notes Documents)
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;


 


(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”).


 


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(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 Agreement;


 


(3)           Indebtedness of
the Company and the Restricted Subsidiaries (including the First Lien Notes) to
the extent outstanding on the Issue Date after giving effect to the intended
use of proceeds of the Notes (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) $30.0 million and (b) 4.0% of Consolidated
Net Tangible Assets at that time;


 


69

















 


(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), (7), (11) or (14) 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
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;


 


(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;


 


(14)         Indebtedness,
Disqualified Equity Interests or Preferred Stock of Persons that are acquired
by the Company or any Restricted Subsidiary or merged into the Company or a Restricted
Subsidiary in accordance with the terms of the applicable Indenture; provided that such Indebtedness, Disqualified Equity
Interests or Preferred Stock is not incurred in contemplation of such
acquisition or merger; provided further
that after giving effect to such acquisition or merger,


 


(A)          the Company
would be permitted to incur at least $1.00 of additional Indebtedness pursuant
to the Consolidated Interest Coverage Ratio; and


 


(B)           the
Consolidated Interest Coverage Ratio of the Company and its Restricted
Subsidiaries is equal to or greater than immediately prior to such acquisition
or merger;


 


70














 


(15)         Indebtedness of
the Company or any Restricted Subsidiary consisting of the financing of
insurance premiums in the ordinary course of business; and


 


(16)         Indebtedness of
the Company or any Restricted Subsidiary in an aggregate amount not to exceed
the greater of (a) $45.0 million and (b) 5% 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
(16) 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 (16) 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, the
accretion or amortization of original issue discount, the payment of interest
on any Indebtedness in the form of additional Indebtedness with the same terms,
the reclassification of preferred stock as Indebtedness due to a change in
accounting principles, and the payment of dividends on preferred stock or
Disqualified Equity Interests in the form of additional shares of the same
class of preferred stock or Disqualified Equity Interests will not be deemed to
be an incurrence of Indebtedness or an issuance of preferred stock or
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 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.


 


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; and


 


71

















 


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


 


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


 


(c)           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, (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 repay borrowings or other amounts outstanding
under a Liquidity Facility;


 


(2)           to repay any Indebtedness secured by the assets
subject to such Asset Sale;


 


(3)           (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);


 


(4)           to make a capital expenditure that is used or useful
in a Permitted Business; and/or


 


72

















 


(5)           make a Net Proceeds Offer in accordance with the
procedures described below and in Section 3.08.


 


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 of the Notes and, if applicable, redeem (or make an
offer to do so) any unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary 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 unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary equal to the
amount of such Excess Proceeds as follows:


 


(1)           the Company will (a) make a Net Proceeds Offer
to all Holders of the Notes in accordance with the procedures set forth in Section 3.08,
and (b) redeem (or make an offer to do so) any such other unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary, pro rata in proportion to
the respective principal amounts of the Notes and such other unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary required to be redeemed,
the maximum principal amount of Notes and unsubordinated Indebtedness of an
Issuer or a Restricted Subsidiary 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 100% of the principal amount of the Notes tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest thereon, if
any, to the date such Net Proceeds Offer is consummated (the “Offered Price”), in accordance with the procedures set forth
in Section 3.08 and the redemption price for such unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary (the “Pari Passu
Indebtedness Price”) shall be as set forth in the related
documentation governing such unsubordinated Indebtedness of an Issuer or a Restricted
Subsidiary;


 


(3)           if the aggregate 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 Net Proceeds Offer in
accordance with the foregoing provisions, the amount of Excess Proceeds with
respect to which such Net Proceeds Offer was made shall be deemed to be zero.


 


To the
extent that the sum of the aggregate Offered Price of Notes tendered pursuant
to a Net Proceeds Offer and the aggregate unsubordinated Indebtedness of an
Issuer or a Restricted 


 


73

















 


Subsidiary paid to the holders of such unsubordinated
Indebtedness of an Issuer or a Restricted Subsidiary 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.


 


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 and not subject to Section 4.15, 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 Net
Proceeds 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 


 


74

















 


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.


 


(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 or Permitted Investments 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;


 


75

















 


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


 


(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, unless all payments due under this Indenture and the
Notes are secured on an equal and ratable basis with the obligations so secured
until such time as such obligations are no longer secured by a Lien.


 


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, 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 


 


76

















 


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;


 


77

















 


(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 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 (a) if such Restricted Subsidiary is to become a
U.S. Guarantor, a supplemental indenture pursuant to which such Restricted
Subsidiary shall unconditionally guarantee all of the Company’s obligations
under the Notes and this Indenture or (b) if such Restricted Subsidiary is
a Subsidiary Guarantor 


 


78

















 


organized
under the laws of Canada or any province or territory therein, a joinder to the
Canadian Subsidiary Guarantee; and


 


(2)           deliver to the
Trustee an opinion of counsel that such supplemental indenture (a) has
been duly authorized, executed and delivered by such Restricted Subsidiary, and
(b) constitutes a valid and legally binding obligation of such Restricted
Subsidiary in accordance with its terms.


 


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
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 


 


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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.          [Reserved]


 


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;


 


(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


 


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(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.          [Reserved]


 


Section 4.23.          [Reserved]


 


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, the First Lien Notes
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


 


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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;


 


(3)           but for the
failure by the Holder or beneficial owner 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.


 


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(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 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.


 


(g)           Without prejudice to the
survival of any other obligation contained in this Indenture, the obligations
of the Issuers and the Guarantors under this Section 4.25 shall survive
the termination of this Indenture and the payment of all amounts payable to the
Holders under this Indenture or with respect to this Indenture.


 


Section 4.26.          [Reserved]


 


Section 4.27.          [Reserved]


 


Section 4.28.          Covenant Suspension


 


(a)           During any
period of time that (1) the Notes have
Investment Grade Ratings from both Rating Agencies and (2) no Default or
Event of Default has occurred and is continuing under this Indenture, the Company and its Restricted
Subsidiaries shall not be subject to Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.20 and 5.01(a)(3) (collectively, the “Suspended
Covenants”).


 


(b)           Notwithstanding Section 4.28(a), if
the rating assigned by either such Rating Agency should subsequently decline
below Investment Grade Ratings, the Suspended Covenants will be reinstituted as
of and from the date of such rating decline and any actions taken, or omitted
to be taken, before such rating decline that would have been prohibited had the
Suspended Covenants been in effect shall not form the basis for a Default or an
Event of Default.


 


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(c)           Calculations under reinstated Section 4.07
will be made as if Section 4.07 had been in effect since the date of this
Indenture except that no Default or Event of Default will be deemed to have occurred
solely by reason of a Restricted Payment made while Section 4.07 was
suspended.


 


(d)           All Indebtedness incurred by the Company
and its Restricted Subsidiaries while Section 4.09 was suspended that
would not have been permitted to be incurred under Section 4.09 had Section 4.09
been applicable shall be deemed to have been incurred under Section 4.09(b)(3).


 


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, (x) 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 (y) 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 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 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; and


 


(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 


 


84

















 


case
may be, could incur $1.00 of additional Indebtedness pursuant to the Coverage
Ratio Exception.


 


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 Facility Collateral
pursuant to any Liquidity Facility.  Section 5.01(a)(2) and
Section 5.01(a)(3) will not apply to (x) any merger,
amalgamation or consolidation of the Company with or into one of its Restricted
Subsidiaries for any purpose or (y) 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, (x) 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 (y) 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 and the Registration Rights Agreement; and


 


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


 


(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 and
the Registration Rights Agreement;


 


85

















 


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


 


(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.


 


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 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;


 


86

















 


(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 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


 


(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


 


87

















 


(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; or


 


(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 release of a Guarantor from its Note Guarantee in accordance with
the terms of this Indenture and the Note Guarantee).


 


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.


 


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Section 6.03.          Other Remedies.


 


If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium and Additional Interest, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture.


 


The Trustee may maintain a proceeding even if it
does not possess any of the Notes or does not produce any of them in the
proceeding.  A delay or omission by the
Trustee or any Holder of a Note in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. 
All remedies are cumulative to the extent permitted by law.


 


Section 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.


 


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
exercising any trust or power conferred on it. 
However, the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.


 


Section 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;


 


(3)           such Holder or
Holders have offered the Trustee reasonable security or indemnity against any
loss, liability or expense;


 


89

















 


(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 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


 


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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.


 


If the Trustee 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 (including any predecessor),
its agents and attorneys for amounts due under Section 7.07 hereof,
including payment of all compensation, expenses and liabilities incurred, and
all advances made, by the Trustee 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.


 


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.


 


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(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 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.


 


(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 shall be deemed to impose any duty or obligation on the Trustee 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 shall be unqualified or 


 


92

















 


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 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 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.


 


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(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.


 


(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 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 


 


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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 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 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 


 


95

















 


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 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 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.


 


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“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.


 


(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,
the Trustee shall have a Lien prior to the Notes upon 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, 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.


 


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.


 


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(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.


 


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.


 


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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, 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, 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, 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 


 


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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 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.


 


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ARTICLE
8


 


[Reserved]


 


ARTICLE
9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01.          Without Consent of Holders
of Notes.


 


Notwithstanding Section 9.02
hereof, the Issuers, the Guarantors and the Trustee will be authorized to amend
or supplement this Indenture, the Notes, 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 Notes, 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 Note Guarantee 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 Note Guarantee or the Notes, which intent may be evidenced
by an Officer’s Certificate to that effect;


 


(8)           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;


 


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(9)           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; or


 


(10)         to
evidence and provide for the appointment of a successor trustee.


 


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
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 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 and the Trustee may amend or supplement
this Indenture (including, without limitation, Sections 3.08, 4.10 and 4.15
hereof), the Notes, 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
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 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 own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee 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.


 


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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);


 


(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.


 


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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 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 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.


 


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 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 


 


104





















 


Notes, if any, if lawful, and all other obligations of the Issuers to
the Holders or the Trustee 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 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 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 all obligations guaranteed
hereby.  Each U.S. Guarantor further
agrees that, as between the U.S. Guarantors, on the one hand, and the Holders
and the Trustee, 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.


 


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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.


 


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:


 


106

















 


(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 and its Note Guarantee on the terms set forth herein or therein,
pursuant to a supplemental indenture; 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.


 


Section 10.05.        Releases.


 


A U.S. Guarantor shall be
released from its obligations under its Note Guarantees and its obligations
under this Indenture and the Registration Rights Agreement:


 


(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



 


107

















 


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, 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.


 


Each Holder of Notes, by its
acceptance thereof, consents and agrees to the terms of the Parent
Guarantee, the Canadian Subsidiary Guarantee and the Issuers’ Guarantee, as
originally in effect and as amended, supplemented or replaced from time to time
in accordance with the terms of this Indenture, and authorizes and directs the
Trustee to enter into, and to perform its obligations and exercise its
rights and powers under, the Parent Guarantee, the Canadian Subsidiary
Guarantee and the Issuers’ Guarantee, and to bind the Holders of Notes as set
forth therein.  The Trustee agrees to act as the representative of
the Holders of Notes under the Parent Guarantee, the Canadian Subsidiary
Guarantee and the Issuers’ Guarantee in accordance with the terms thereof and
of this Indenture.


 


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:


 


(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 


 


108





















 


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 Section 11.02 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.


 


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 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



 


109

















 


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 or the Trustee 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


Attention:  Vice President and General Counsel


Telecopier
No.: +1 (403) 206-4011


 


110

















 


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


 


The Issuers, any Guarantor
or the Trustee, by notice to the others, may designate additional or different
addresses for subsequent notices or communications.


 


All notices and
communications (other than those sent to Holders 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 


 


111

















 


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 and each
Agent at the same time.


 


Section 12.03.        Communication by Holders of Notes with Other
Holders of Notes.


 


Holders may communicate
pursuant to TIA § 312(b) with other Holders with respect to their rights
under this Indenture or the Notes.  The
Issuers, the Trustee, the Registrar and anyone else shall have the protection
of TIA § 312(c).


 


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:


 


(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.


 


112





















 


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 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.


 


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.


 


113

















 


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.


 


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.


 


114














 


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;


 


(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


 


115

















 


(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, 4.20, 4.21, 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:


 


(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:


 


116

















 


(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


 


(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.


 


117

















 


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 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, 


 


118

















 


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]


 


119

















 


	
   

  	
  SIGNATURES

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dated
  as of January 19, 2010

  	
  GIBSON ENERGY ULC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Name:

  	
  A. Stewart Hanlon

  
	
   

  	
   

  	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  GEP MIDSTREAM FINANCE CORP.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard G. Taylor

  
	
   

  	
   

  	
  Name:

  	
  Richard G. Taylor

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President, Finance and Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  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/
  Richard G. Taylor

  
	
   

  	
   

  	
  Authorized Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MOOSE
  JAW REFINERY PARTNERSHIP

  
	
   

  	
  by its
  managing partner,

  
	
   

  	
  Gibson Energy ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 


S-1

















 


	
   

  	
  MOOSE JAW REFINERY ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy
  ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CANWEST PROPANE ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy
  ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MP ENERGY ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON ENERGY PARTNERSHIP

  
	
   

  	
  by its managing partner,

  
	
   

  	
  Gibson Energy
  ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  



 


S-2

















 


	
   

  	
  GEP ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  LINK PETROLEUM SERVICES LTD.

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CHIEF HAULING CONTRACTORS ULC

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GIBSON GCC INC.

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER
  TERMINAL LP

  
	
   

  	
  by its general
  partner,

  
	
   

  	
  Battle River
  Terminal GP Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BATTLE RIVER
  TERMINAL GP INC. 

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized
  Signing Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  BRIDGE CREEK
  TRUCKING LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ A. Stewart Hanlon

  
	
   

  	
   

  	
  Authorized Signing Officer

  



 


S-3

















 


	
  Dated
  as of January 19, 2010

  	
  THE
  BANK OF NEW YORK MELLON,

  
	
   

  	
    as
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Lici Zhu

  
	
   

  	
   

  	
  Name:

  	
  Lici
  Zhu

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Associate

  



 


S-4






 










 


EXHIBIT A


 


[FACE OF NOTE]


 


CUSIP/CINS              


 


10.00% Senior Note due 2018


 


	
  No.       

  	
  $            

  



 


Gibson Energy ULC


GEP Midstream Finance Corp.


 


jointly
and severally, promise to pay to Cede & Co. or registered assigns, the
principal sum of                                                
on January 15, 2018.


 


Interest
Payment Dates:  January 15  and July 15 (or, if any such day is not
a Business Day, the next succeeding Business Day)


 


Record
Dates:  January 1 and July 1


 


Dated:  January 19, 2010


 


	
   

  	
  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

















 


10.00% Senior Notes due 2018


 


[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 10.00% 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 January 15 and July 15 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 January 19,
2010 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 July 15, 2010.  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 January 1
and July 1 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 Agent or
Registrar without notice to any Holder. 
The Company or any of its Subsidiaries may act in any such capacity.


 


A-2

















 


(4)                                  INDENTURE.  The Company issued the Notes under an
Indenture dated as of January 19, 2010 (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 July 15, 2014, 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 period
subsequent to July 15, 2014 and each of the subsequent dates indicated:


 


	
  Year

  	
   

  	
  Optional

  redemption price

  	
   

  
	
  July 15, 2014

  	
   

  	
  105.000

  	
  %

  
	
  January 15, 2015

  	
   

  	
  102.500

  	
  %

  
	
  January 15, 2016

  	
   

  	
  101.125

  	
  %

  
	
  January 15, 2017 and
  thereafter

  	
   

  	
  100.000

  	
  %

  



 


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 January 15, 2013, 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 110.000% of the principal amount thereof, 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
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 


 


A-3

















 


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); provided that any such redemption pursuant to this clause (d) may
be made only with the cash proceeds of a Qualified Equity Offering or the
incurrence of Refinancing Indebtedness.  Notice of any such redemption must be given
within 60 days of the announcement or 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
unsubordinated Indebtedness of an Issuer or a Restricted Subsidiary the
provisions of which require the Company to redeem such Indebtedness with
proceeds from any Asset Sales (or offer to do so) (an “Net Proceeds
Offer”) pursuant to Section 3.08 of the Indenture to purchase
the maximum principal amount of Notes (including any Additional Notes) and such
other unsubordinated Indebtedness of an Issuer or a Restricted Subsidiary 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 unsubordinated Indebtedness of
an Issuer or a Restricted Subsidiary tendered pursuant to an Net Proceeds 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 Net Proceeds 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 Net Proceeds
Offer from the Company 


 


A-4

















 


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.


 


(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 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 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 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 Notes, 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 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 Note Guarantee or the
Notes to any provision of the “Description of Notes” section of the Offering 


 


A-5

















 


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 Note Guarantee
or the Notes, which intent may be evidenced by an Officer’s Certificate to that
effect; (viii) 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; (ix) 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; and (x) to evidence and provide for the
appointment of a successor trustee.


 


(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 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 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; or (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 


 


A-6

















 


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). 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.


 


(14)                        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.


 


(15)                            AUTHENTICATION.  This Note will not be valid until
authenticated by the manual signature of the Trustee or an authenticating
agent.


 


(16)                            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).


 


(17)                            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 January 19, 2010 among the Company, 


 


A-7

















 


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”).


 


(18)                            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.


 


(19)                            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.


 


The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture 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-8






 










 


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-9

















 


OPTION OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10 or 4.15 of the Indenture, check the
appropriate box below:


 




	
  o   Section 4.10

  	
   

  	
  o   Section 4.15

  






 


If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section 4.15 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-10

















 


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-11






 










 


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:  10.00% Senior Notes due 2018


 


Reference is hereby made to
the Indenture, dated as of January 19, 2010 (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:  10.00%
Senior Notes due 2018


 


(CUSIP
                     )


 


Reference is hereby made to the Indenture, dated as
of January 19, 2010 (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 S


 


C-2

















 


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:  10.00%
Senior Notes due 2018


 


Reference is hereby made to the Indenture, dated as
of January 19, 2010 (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 January 19, 2010 (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) 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 an indenture
(the “Indenture”), dated as of January 19,
2010, providing for the issuance of 10.00% Senior Notes due 2018 (the “Notes”), as supplemented;


 


WHEREAS, the Indenture provides that under certain
circumstances the Guaranteeing Subsidiary shall execute and deliver to the
Trustee 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 is 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 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 a Note
waives and releases all such liability. 
The waiver and release are part of the consideration


 


F-1

















 


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.  The Trustee shall not 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

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  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