Exhibit 10.5


 




 





NISKA GAS STORAGE US, LLC,


NISKA GAS STORAGE US FINANCE CORP.,


NISKA GAS STORAGE CANADA ULC


and

NISKA GAS STORAGE CANADA FINANCE CORP.

as Issuers,


 


AND EACH OF THE GUARANTORS PARTY HERETO


 






 




UNITS


 


Each $1000 Principal Amount of Units Consisting of


 




$218.75 Principal Amount of 8.875% Senior Notes Due 2018 of

Niska Gas Storage US,
LLC and Niska Gas Storage US Finance Corp.


 




AND


 




$781.25 Principal Amount of 8.875% Senior Notes Due 2018 of

Niska Gas Storage Canada
ULC and Niska Gas Storage Canada Finance Corp.


 






 




INDENTURE


 


Dated as of March 5, 2010


 






 






THE BANK OF NEW YORK MELLON

as Trustee,







 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 1

  DEFINITIONS AND INCORPORATION

  BY REFERENCE

   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Other Definitions

  	
   

  	
  24

  
	
  Section 1.03

  	
   

  	
  Rules of Construction

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 2

  THE UNITS

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  Form and Dating

  	
   

  	
  26

  
	
  Section 2.02

  	
   

  	
  Execution and Authentication

  	
   

  	
  27

  
	
  Section 2.03

  	
   

  	
  Registrar and Paying Agent

  	
   

  	
  27

  
	
  Section 2.04

  	
   

  	
  Paying Agent to Hold Money in Trust

  	
   

  	
  28

  
	
  Section 2.05

  	
   

  	
  Holder Lists

  	
   

  	
  28

  
	
  Section 2.06

  	
   

  	
  Transfer and Exchange

  	
   

  	
  28

  
	
  Section 2.07

  	
   

  	
  Replacement Units

  	
   

  	
  38

  
	
  Section 2.08

  	
   

  	
  Outstanding Units

  	
   

  	
  38

  
	
  Section 2.09

  	
   

  	
  Treasury Units

  	
   

  	
  38

  
	
  Section 2.10

  	
   

  	
  Temporary Units

  	
   

  	
  39

  
	
  Section 2.11

  	
   

  	
  Cancellation

  	
   

  	
  39

  
	
  Section 2.12

  	
   

  	
  Defaulted Interest

  	
   

  	
  39

  
	
  Section 2.13

  	
   

  	
  Issuance of Additional Units

  	
   

  	
  39

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 3

  REDEMPTION AND PREPAYMENT

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Redemption

  	
   

  	
  40

  
	
  Section 3.02

  	
   

  	
  Notices to Trustee

  	
   

  	
  41

  
	
  Section 3.03

  	
   

  	
  Selection of Notes as Units to Be Redeemed or Purchased

  	
   

  	
  41

  
	
  Section 3.04

  	
   

  	
  Notice of Redemption

  	
   

  	
  42

  
	
  Section 3.05

  	
   

  	
  Effect of Notice of Redemption

  	
   

  	
  42

  
	
  Section 3.06

  	
   

  	
  Deposit of Redemption or Purchase Price

  	
   

  	
  43

  
	
  Section 3.07

  	
   

  	
  Notes Redeemed or Purchased in Part

  	
   

  	
  43

  
	
  Section 3.08

  	
   

  	
  Offer to Purchase by Application of Excess Proceeds

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 4

  COVENANTS

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Payment of Notes

  	
   

  	
  45

  
	
  Section 4.02

  	
   

  	
  Maintenance of Office or Agency

  	
   

  	
  45

  
	
  Section 4.03

  	
   

  	
  Reports

  	
   

  	
  45

  
	
  Section 4.04

  	
   

  	
  Compliance Certificate

  	
   

  	
  47

  
	
  Section 4.05

  	
   

  	
  Taxes and Tax Treatment of Units

  	
   

  	
  47

  
	
  Section 4.06

  	
   

  	
  Stay, Extension and Usury Laws

  	
   

  	
  47

  
	
  Section 4.07

  	
   

  	
  Restricted Payments

  	
   

  	
  48

  
	
  Section 4.08

  	
   

  	
  Dividend and Other Payment Restrictions Affecting
  Restricted Subsidiaries

  	
   

  	
  52

  
	
  Section 4.09

  	
   

  	
  Incurrence of Indebtedness and Issuance of Disqualified
  Stock

  	
   

  	
  53

  
	
  Section 4.10

  	
   

  	
  Asset Sales

  	
   

  	
  56

  
	
  Section 4.11

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  58

  
	
  Section 4.12

  	
   

  	
  Liens

  	
   

  	
  59

  
	
  Section 4.13

  	
   

  	
  Business Activities

  	
   

  	
  59

  
	
  Section 4.14

  	
   

  	
  Existence

  	
   

  	
  59

  
	
  Section 4.15

  	
   

  	
  Offer to
  Repurchase Upon Change of Control

  	
   

  	
  60

  



 


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  Section 4.16

  	
   

  	
  Payments for Consent

  	
   

  	
  61

  
	
  Section 4.17

  	
   

  	
  Additional Note Guarantees

  	
   

  	
  61

  
	
  Section 4.18

  	
   

  	
  Designation of Restricted and Unrestricted Subsidiaries

  	
   

  	
  61

  
	
  Section 4.19

  	
   

  	
  Additional Amounts

  	
   

  	
  62

  
	
  Section 4.20

  	
   

  	
  Changes in Covenants When Notes Rated Investment Grade

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 5

  SUCCESSORS

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Merger, Consolidation or Sale of Assets

  	
   

  	
  64

  
	
  Section 5.02

  	
   

  	
  Successor Substituted

  	
   

  	
  65

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 6

  DEFAULTS AND REMEDIES

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Events of Default

  	
   

  	
  65

  
	
  Section 6.02

  	
   

  	
  Acceleration

  	
   

  	
  67

  
	
  Section 6.03

  	
   

  	
  Other Remedies

  	
   

  	
  67

  
	
  Section 6.04

  	
   

  	
  Waiver of Past Defaults

  	
   

  	
  68

  
	
  Section 6.05

  	
   

  	
  Control by Majority

  	
   

  	
  68

  
	
  Section 6.06

  	
   

  	
  Limitation on Suits

  	
   

  	
  68

  
	
  Section 6.07

  	
   

  	
  Rights of Holders of Notes to Receive Payment

  	
   

  	
  68

  
	
  Section 6.08

  	
   

  	
  Collection Suit by Trustee

  	
   

  	
  69

  
	
  Section 6.09

  	
   

  	
  Trustee May File Proofs of Claim

  	
   

  	
  69

  
	
  Section 6.10

  	
   

  	
  Priorities

  	
   

  	
  69

  
	
  Section 6.11

  	
   

  	
  Undertaking for Costs

  	
   

  	
  70

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 7

  TRUSTEE

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Duties of Trustee

  	
   

  	
  70

  
	
  Section 7.02

  	
   

  	
  Rights of Trustee

  	
   

  	
  71

  
	
  Section 7.03

  	
   

  	
  Individual Rights of Trustee

  	
   

  	
  71

  
	
  Section 7.04

  	
   

  	
  Trustee’s Disclaimer

  	
   

  	
  72

  
	
  Section 7.05

  	
   

  	
  Notice of Defaults

  	
   

  	
  72

  
	
  Section 7.06

  	
   

  	
  Compensation and Indemnity

  	
   

  	
  72

  
	
  Section 7.07

  	
   

  	
  Replacement of Trustee

  	
   

  	
  73

  
	
  Section 7.08

  	
   

  	
  Successor Trustee by Merger, etc.

  	
   

  	
  73

  
	
  Section 7.09

  	
   

  	
  Eligibility; Disqualification

  	
   

  	
  73

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 8

  LEGAL DEFEASANCE AND COVENANT DEFEASANCE

  	
   

  	
   

  
	
  Section 8.01

  	
   

  	
  Option to Effect Legal Defeasance or Covenant Defeasance

  	
   

  	
  74

  
	
  Section 8.02

  	
   

  	
  Legal Defeasance and Discharge

  	
   

  	
  74

  
	
  Section 8.03

  	
   

  	
  Covenant Defeasance

  	
   

  	
  74

  
	
  Section 8.04

  	
   

  	
  Conditions to Legal or Covenant Defeasance

  	
   

  	
  75

  
	
  Section 8.05

  	
   

  	
  Deposited Money and Government Securities to be Held in
  Trust; Other Miscellaneous Provisions

  	
   

  	
  76

  
	
  Section 8.06

  	
   

  	
  Repayment to Issuers

  	
   

  	
  76

  
	
  Section 8.07

  	
   

  	
  Reinstatement

  	
   

  	
  76

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 9

  AMENDMENT, SUPPLEMENT AND WAIVER

  	
   

  	
   

  
	
  Section 9.01

  	
   

  	
  Without Consent of Holders

  	
   

  	
  77

  
	
  Section 9.02

  	
   

  	
  With Consent of Holders

  	
   

  	
  77

  
	
  Section 9.03

  	
   

  	
  Revocation and Effect of Consents

  	
   

  	
  79

  
	
  Section 9.04

  	
   

  	
  Notation on or Exchange of Units and Notes

  	
   

  	
  79

  
	
  Section 9.05

  	
   

  	
  Trustee
  to Sign Amendments, etc.

  	
   

  	
  79

  



 


 


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  ARTICLE 10

  NOTE GUARANTEES

  	
   

  	
   

  
	
  Section 10.01

  	
   

  	
  Guarantees

  	
   

  	
  79

  
	
  Section 10.02

  	
   

  	
  [Reserved]

  	
   

  	
  80

  
	
  Section 10.03

  	
   

  	
  Limitation on Guarantor Liability

  	
   

  	
  80

  
	
  Section 10.04

  	
   

  	
  Execution and Delivery of Note Guarantee

  	
   

  	
  80

  
	
  Section 10.05

  	
   

  	
  Guarantors May Consolidate, etc., on Certain Terms

  	
   

  	
  81

  
	
  Section 10.06

  	
   

  	
  Releases

  	
   

  	
  81

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 11

  SATISFACTION AND DISCHARGE

  	
   

  	
   

  
	
  Section 11.01

  	
   

  	
  Satisfaction and Discharge

  	
   

  	
  82

  
	
  Section 11.02

  	
   

  	
  Application of Trust Money

  	
   

  	
  83

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 12

  [Reserved]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 13

  MISCELLANEOUS

  	
   

  	
   

  
	
  Section 13.01

  	
   

  	
  Notices

  	
   

  	
  83

  
	
  Section 13.02

  	
   

  	
  Certificate and Opinion as to Conditions Precedent

  	
   

  	
  84

  
	
  Section 13.03

  	
   

  	
  Statements Required in Certificate or Opinion

  	
   

  	
  85

  
	
  Section 13.04

  	
   

  	
  Rules by Trustee and Agents

  	
   

  	
  85

  
	
  Section 13.05

  	
   

  	
  No Personal Liability of Directors, Officers, Employees and
  Stockholders

  	
   

  	
  85

  
	
  Section 13.06

  	
   

  	
  Governing Law

  	
   

  	
  85

  
	
  Section 13.07

  	
   

  	
  No Adverse Interpretation of Other Agreements

  	
   

  	
  85

  
	
  Section 13.08

  	
   

  	
  Successors

  	
   

  	
  86

  
	
  Section 13.09

  	
   

  	
  Severability

  	
   

  	
  86

  
	
  Section 13.10

  	
   

  	
  Counterpart Originals

  	
   

  	
  86

  
	
  Section 13.11

  	
   

  	
  Table of Contents, Headings, etc.

  	
   

  	
  86

  
	
  Section 13.12

  	
   

  	
  Judgment Currency

  	
   

  	
  86

  
	
  Section 13.13

  	
   

  	
  Interest Act (Canada)

  	
   

  	
  87

  
	
  Section 13.14

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  87

  
	
  Section 13.15

  	
   

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

  	
   

  	
  87

  
	
  Section 13.16

  	
   

  	
  Force
  Majeure

  	
   

  	
  87

  



 


iii

















 


EXHIBITS


 


	
  Exhibit A1

  	
   

  	
  FORM OF
  U.S. NOTE

  
	
  Exhibit A2

  	
   

  	
  FORM OF
  CANADIAN NOTE

  
	
  Exhibit A3

  	
   

  	
  FORM OF
  UNIT

  
	
  Exhibit B

  	
   

  	
  FORM OF
  CERTIFICATE OF TRANSFER

  
	
  Exhibit C

  	
   

  	
  FORM OF
  CERTIFICATE OF EXCHANGE

  
	
  Exhibit D

  	
   

  	
  FORM OF
  CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR

  
	
  Exhibit E

  	
   

  	
  FORM OF
  NOTATION OF GUARANTEE

  
	
  Exhibit F

  	
   

  	
  FORM OF
  SUPPLEMENTAL INDENTURE

  



 


iv














 


INDENTURE, dated as of March 5, 2010, among Niska Gas Storage US, LLC (“Niska U.S.”), Niska Gas Storage US Finance
Corp. (“U.S. Finco” and, together
with Niska U.S., the “U.S. Issuers”),
Niska Gas Storage Canada ULC (“Niska Canada”)
and Niska Gas Storage Canada Finance Corp. (“Canadian
Finco” and, together with Niska Canada, the “Canadian Issuers” and, together with the
U.S. Issuers, the “Issuers”), the
Guarantors (as defined herein) and The Bank of New York Mellon, as Trustee (as
defined herein).


 


WHEREAS, the U.S. Issuers have duly authorized the
creation of their 8.875% Senior Notes due 2018 (the “U.S. Notes”)
and the Canadian Issuers have duly authorized the creation of their 8.875%
Senior Notes due 2018 (the “Canadian Notes”,
and together with the U.S. Notes, the “Notes”);


 


WHEREAS, the Issuers have duly authorized the
creation of units (the “Units”) that
may not be separately transferred from the Notes, each $1,000 principal amount
of Units consisting of $218.75 principal amount of U.S. Notes and $781.25
principal amount of the Canadian Notes;


 


WHEREAS, the Guarantors have duly authorized their
respective Note Guarantees (as defined herein) of the Notes; and


 


WHEREAS, all things necessary to make the Units (and
the Notes comprising the Units), when each is duly issued and executed by the
applicable Issuer thereof, and authenticated and delivered hereunder, the valid
obligations of such Issuer, to make the Note Guarantees the valid and binding
obligations of the Guarantors, and to make this Indenture a valid and binding
agreement of each of the Issuers and the Guarantors, have been done.


 


NOW, THEREFORE, each party hereto agrees as follows
for the benefit of the other parties and for the equal and ratable benefit of
the Holders (as defined herein):


 


ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE


 


Section 1.01           Definitions.


 


“144A Global Unit”
means a Global Unit, substantially in the form of Exhibit A3 hereto
bearing the Global Unit Legend and the Private Placement Legend, comprised of
Notes substantially in the form of Exhibit A1 hereto (in the case of a
U.S. Note) and Exhibit A2 hereto (in the case of a Canadian Note) bearing
the Private Placement Legend, each 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 Units (and the
corresponding principal amount of Notes) of the related Issuers sold in reliance
on Rule 144A.


 


“Acquired Debt”
means, with respect to any specified Person:


 


(1)           Indebtedness
of any other Person existing at the time such other Person is merged or
amalgamated with or into or became a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in
contemplation of, such other Person merging or amalgamating with or into, or
becoming a Restricted Subsidiary of, such specified Person; provided, however,
that Indebtedness of such acquired Person which is redeemed, defeased, retired
or otherwise repaid at the time of or immediately upon consummation of the
transactions by which such Person merges or amalgamates with or into or becomes
a Subsidiary of such Person shall not be Acquired Debt; and


 


(2)           Indebtedness
secured by a Lien encumbering any asset acquired by such specified Person.


 


“Additional Units”
means additional Units (other than the Initial Units) issued under this
Indenture in accordance with Sections 2.02, 2.13, 4.09 and 4.12 hereof, as part
of the same series as the Initial Units.


 

















 


“Affiliate” of
any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified
Person. For purposes of this definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting
Stock of a Person will be deemed to be control. For purposes of this
definition, the terms “controlling,” “controlled by” and “under common control
with” have correlative meanings.


 


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


 


“Applicable Premium”
means, with respect to any Note on any redemption date, the greater of:


 


(1)           1.0%
of the principal amount of the Note; or


 


(2)           the
excess of: (a) the present value at such redemption date of (i) the
redemption price of the Note at March 15, 2014, (such redemption price
being set forth in the table appearing in Section 3.01(c) hereof)
plus (ii) all required interest payments due on the Note through March 15,
2014, (excluding accrued but unpaid interest, if any, to the redemption date),
computed using a discount rate equal to the Treasury Rate as of such redemption
date plus 50 basis points; over (b) the principal amount of the Note.


 


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


 


“Asset Sale”
means:


 


(1)           the
sale, lease, conveyance or other disposition of any assets or rights by the Company
or any of the Company’s Restricted Subsidiaries; provided that
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company and its Restricted Subsidiaries taken as a whole will
be governed by Section 4.15 and/or 5.01 hereof and not by Section 4.10
hereof; and


 


(2)           the
issuance of Equity Interests by any of the Company’s Restricted Subsidiaries or
the sale by the Company or any of the Company’s Restricted Subsidiaries of
Equity Interests in any of the Company’s Restricted Subsidiaries (other than
directors’ qualifying shares or shares required by applicable law to be held by
a Person other than the Company or a Restricted Subsidiary).


 


Notwithstanding the preceding, none of the following
items will be deemed to be an Asset Sale:


 


(1)           any
single transaction or series of related transactions that involve assets having
a Fair Market Value of less than $15.0 million and not exceeding $30.0 million
in any fiscal year;


 


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


 


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


 


(4)           the
sale, lease or other transfer or discount of products, services or accounts
receivable in the ordinary course of business and any sale or other disposition
of damaged, worn-out or obsolete assets in the ordinary course of business
(including the assignment, cancellation or abandonment or other disposition of
intellectual property that is, in the reasonable judgment of the Company, no
longer economically practicable to maintain or useful in any material respect
in the conduct of the business of the Company and its Restricted Subsidiaries
taken as whole);


 


(5)           grants
of leases, subleases, licenses and sublicenses in the ordinary course of business;


 


2

















 


(6)           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;


 


(7)           the
granting of Liens not prohibited by Section 4.12 hereof;


 


(8)           the
sale or other disposition of cash or Cash Equivalents;


 


(9)           a
Restricted Payment that does not violate the Section 4.07 hereof or a
Permitted Investment


 


(10)         dispositions
of Investments or receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or
similar proceeds and exclusive of factoring or similar arrangements;


 


(11)         the
sale of an Unrestricted Subsidiary;


 


(12)         the
sale or other disposition of Equity Interests of, or an issuance of Equity
Interests by, an Unrestricted Subsidiary;


 


(13)         the
sale of Permitted Investments (other than sales of Equity Interests of any of
the Company’s Restricted Subsidiaries) made by the Company or any Restricted
Subsidiary after the date of this Indenture, if such Permitted Investments were
(a) received in exchange for, or purchased out of the net cash proceeds of
the sale (other than to a Subsidiary of the Company) of, Equity Interests of
the Company (other than Disqualified Stock) or (b) received in the form
of, or were purchased from the proceeds of, a contribution of common equity
capital to the Company;


 


(14)         grants
of Capital Stock of Restricted Subsidiaries or options or other rights to
acquire shares of Capital Stock of Restricted Subsidiaries (or issuances of
Capital Stock of Restricted Subsidiaries upon the exercise of such options or
other rights) made to employees or directors under Section 4.11(b)(1) hereof
having an aggregate Fair Market Value of $10.0 million in any fiscal year.


 


(15)         any
transaction occurring as a result of MLP Formation Transactions; and


 


(16)         the
sale or other disposition of any or all of Access Gas Services Inc., Access Gas
Services (Alberta) Inc., and Access Gas Services (Ontario) Inc.


 


“Bankruptcy Law”
means (i) Title 11, U.S. Code or any similar federal or state law for the
relief of debtors and (ii) any of 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 similar federal, provincial or territorial law in Canada.


 


“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 (other than any right conditioned upon the occurrence
of events or circumstances outside such person’s control). The terms “Beneficially
Owns” and “Beneficially Owned” have a corresponding meaning.


 


“Board of Directors”
means:


 


(1)           with
respect to a corporation (including an unlimited liability company), the board
of directors of the corporation or any committee thereof duly authorized to act
on behalf of such board;


 


3

















 


(2)           with
respect to a partnership, the Board of Directors of the general partner of the
partnership (or the board of the partnership or Persons performing similar
functions);


 


(3)           with
respect to a limited liability company, the Board of Directors of the managing
member, if the managing member is an entity (or the board of the limited
liability company or Persons performing similar functions), or the managing
member or members or any controlling committee of managing members thereof, if
the managing members are individuals; and


 


(4)           with
respect to any other Person, the board or committee of such Person serving a
similar function.


 


“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the applicable Person to have been duly adopted by the Board of
Directors of such Person and to be in full force and effect on the date of such
certification, and delivered to the Trustee.


 


“Borrowing Base” means, as of any date, (a) 100%
of the cash and Cash Equivalents (excluding margin deposits) of the Company and
its Restricted Subsidiaries, plus
(b) 90% of the net book value of the trade receivables and accrued
receivables of the Company and its Restricted Subsidiaries, plus (c) 90% of the net book value of
inventory of the Company and its Restricted Subsidiaries, plus (d) 80% of issued but unused
letters of credit of the Company and its Restricted Subsidiaries, plus (e) 25% of the net book value of
the property, plant and equipment of the Company and its Restricted
Subsidiaries.


 


“Business Day”
means any day other than a Legal Holiday.


 


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


 


“Capital Improvement” means any (a) addition or
improvement to the capital assets owned by any Group Member, (b) acquisition
(through an asset acquisition, merger, stock acquisition or other form of
investment) of existing, or the construction of new, capital assets, or (c) capital
contribution by a Group Member to a Person that is not a MLP Subsidiary, in
which a Group Member has an equity interest, or after such capital contribution
will have, to fund the Group Member’s pro rata share of the cost of the
acquisition of existing, or the construction of new or the improvement of
existing, capital assets, in each case if such addition, improvement,
acquisition or construction is made to increase the long term operating
capacity or net income of the Company Group from the long term operating
capacity or net income of the Company Group, in the case of clauses (a) and
(b), or such Person, in the case of clause (c), from that existing immediately
prior to such addition, improvement, acquisition or construction.


 


“Capital Lease Obligation”
means, at the time any determination is to be made, the amount of the liability
in respect of a capital lease that would at that time be required to be
capitalized on a balance sheet prepared in accordance with GAAP, and the Stated
Maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may
be prepaid by the lessee without payment of a penalty.


 


“Capital Stock”
means:


 


(1)           in
the case of a corporation (including an unlimited liability company), corporate
stock;


 


(2)           in
the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock;


 


(3)           in
the case of a partnership or limited liability company, partnership interests
(whether general or limited) or membership interests; and


 


(4)           any
other interest or participation that confers on a Person the right to receive a
share of the profits and losses of, or distributions of assets of, the issuing
Person, but excluding from all of the 


 


4

















 


foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.


 


“Cash Equivalents”
means:


 


(1)           United
States dollars or Canadian dollars;


 


(2)           securities
issued or directly and fully guaranteed or insured by the United States or Canadian
government or any agency or instrumentality of the United States or Canadian
government (provided that the full faith and credit
of the United States or Canada 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 six months and overnight bank deposits, in each case, with any lender
party to the Credit Agreement or with any domestic United States or Canadian
commercial bank;


 


(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
and, in each case, maturing within six months after the date of acquisition;
and


 


(6)           money
market funds the assets of which primarily 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:


 


(1)           the
direct or indirect sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the Company
and its Subsidiaries taken as a whole, to any Person (including any “person”
(as that term is used in Section 13(d)(3) of the Exchange Act)) that
is not a Permitted Holder, which occurrence is followed by a Ratings Decline
within 90 days; provided that a transaction where
the holders of all classes of Voting Stock of the Company immediately prior to
such transaction own, directly or indirectly, a majority of the aggregate
voting power of all classes of Voting Stock of such Person immediately after
such transaction will not be a Change of Control;


 


(2)           the
adoption of a plan relating to the liquidation or dissolution of the Company; provided that prior to a Qualified MLP IPO, any such plan
relating to either of Niska Holdings I or Niska Holdings II shall constitute
such a “Change of Control”;


 


(3)           the
consummation of any transaction (including, without limitation, any merger or
consolidation) other than the MLP Formation Transactions, the result of which
is that any Person (including any “person” (as defined above) that is not a
Permitted Holder becomes the Beneficial Owner, directly or indirectly, of more
than 50% of the Voting Stock of the Company, measured by voting power rather
than number of shares, which occurrence is followed by a Ratings Decline within
90 days; or


 


(4)           the
Company consolidates with, or merges with or into, any Person that is not a
Permitted Holder, or any Person that is not a Permitted Holder consolidates
with, or merges with or into, the Company, in any such event pursuant to a transaction
in which any of the outstanding, Voting Stock of the Company or such other
Person is converted into or exchanged for cash, securities or other property,
other than any such transaction where the Voting Stock of the Company
outstanding immediately prior to such transaction constitutes or is converted
into or exchanged for a majority of the outstanding shares of the Voting 


 


5

















 


Stock of such surviving or
transferee Person (immediately after giving effect to such transaction), which
occurrence is followed by a Ratings Decline within 90 days.


 


“Clearstream”
means Clearstream Banking, S.A.


 


“Code” means the
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated thereunder.


 


“Commences Commercial Service” means a
Capital Improvement is first put into commercial service by a Group Member
following, if applicable, completion of construction and testing.


 


“Company” means (i) prior
to a Qualified MLP IPO, Niska Holdings I and Niska Holdings II, together on a
combined basis, and (ii) after a Qualified MLP IPO, the MLP and, in each
case, not to any of their respective Subsidiaries


 


“Company Group” means the Company and its
MLP Subsidiaries treated as a single entity.


 


“Consolidated Cash Flow” means, with
respect to any specified Person for any period, the Consolidated Net Income of
such Person for such period plus:


 


(1)           an
amount equal to any net loss realized by such Person or any of its Restricted
Subsidiaries in connection with an Asset Sale, to the extent such losses were
deducted in computing such Consolidated Net Income; plus


 


(2)           provision
for taxes based on income or profits of such Person and its Restricted Subsidiaries
for such period, to the extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus


 


(3)           Fixed
Charges to the extent deducted in computing such Consolidated Net Income; plus


 


(4)           depreciation
and amortization (including amortization of intangibles but excluding amortization
of prepaid cash expenses that were paid in a prior period), impairment and
other non-cash expenses (excluding any such non-cash expense to the extent that
it represents an accrual of or reserve for cash expenses in any future period
or amortization of a prepaid cash expense that was paid in a prior period) of
such Person and its Restricted Subsidiaries for such period to the extent that
such depreciation and amortization, impairment and other non-cash expenses were
deducted in computing such Consolidated Net Income; plus


 


(5)           non-cash
losses resulting from foreign currency balance sheet adjustments required by
GAAP to the extent such losses were deducted in computing such Consolidated Net
Income; plus


 


(6)           all
extraordinary, unusual or non-recurring items of gain or loss, or revenue or expense;
minus


 


(7)           non-cash
items increasing such Consolidated Net Income for such period, other than items
that were accrued in the ordinary course of business,


 


in each case, on a
consolidated basis and determined in accordance with GAAP.


 


“Consolidated Net Income” means, with
respect to any specified Person for any period, the aggregate of the Net Income
of such Person and its Restricted Subsidiaries for such period, on a
consolidated basis, determined in accordance with GAAP, provided that:


 


(1)           the
Net Income (but not loss) of any Person that is not a Restricted Subsidiary or
that is accounted for by the equity method of accounting will be included, but
only to the extent of the amount of 


 


6

















 


dividends or distributions
paid in cash to the specified Person or a Restricted Subsidiary of the Person; provided that with respect to any Joint
Venture, the aggregate Net Income of such Joint Venture will be included to the
extent of the Company’s and a Restricted Subsidiary’s percent ownership of such
Joint Venture so long as the declaration or payment of dividends or similar
distributions by such Joint Venture of that Net Income is at the date of
determination permitted without any prior governmental approval (that has not
been obtained) or, directly or indirectly, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Joint Venture or its stockholders,
partners or members;


 


(2)           the
Net Income of any Restricted Subsidiary (other than an Issuer) that is not a
Guarantor will be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior governmental
approval (that has not been obtained) or, directly or indirectly, by operation
of the terms of its charter or any judgment, decree, order, statute, rule or
governmental regulation applicable to that Restricted Subsidiary or its
stockholders, partners or members;


 


(3)           the
cumulative effect of a change in accounting principles will be excluded;


 


(4)           unrealized
losses and gains under derivative instruments included in the determination of
Consolidated Net Income, including, without limitation those resulting from the
application of Statement of Financial Accounting Standards No. 133 will be
excluded;


 


(5)           any
nonrecurring charges relating to any premium or penalty paid, write off of
deferred finance costs or other charges in connection with redeeming or
retiring any Indebtedness prior to its Stated Maturity will be excluded; and


 


(6)           any
impairment charge or asset write-off or write-down, including those pursuant to
Statement of Financial Accounting Standards No. 142.


 


“Consolidated Net Tangible Assets” means,
with respect to any Person at any date of determination, the aggregate amount
of total assets included in such Person’s most recent quarterly or annual
consolidated balance sheet prepared in accordance with GAAP less applicable
reserves reflected in such balance sheet, after deducting all goodwill,
trademarks, patents, unamortized debt discounts and expenses and other like
intangibles reflected in such balance sheet.


 


“Contribution Indebtedness” means
Indebtedness of the Company or any of its Restricted Subsidiaries in an
aggregate principal amount not to exceed two times the aggregate amount of cash
received by the Issuer after the date of the Indenture from the sale of its
Equity Interests (other than Disqualified Stock) or as a contribution to its
common equity capital (in each case, other than to or from a Subsidiary of the
Issuer); provided that such
Indebtedness (a) is incurred within 180 days after the sale of such Equity
Interests or the making of such capital contribution and (b) is designated
as “Contribution Indebtedness” pursuant to an Officers’ Certificate on the date
of its incurrence.  Any sale of Equity
Interests or capital contribution that forms the basis for an incurrence of
Contribution Indebtedness will not be considered to be a sale of Equity
Interests and will be disregarded for purposes of Section 4.07 hereof and
will not be considered to be an Equity Offering for purposes of Section 3.01
hereof.


 


“Corporate Trust Office of
the Trustee” will be at the address of the Trustee specified in Section 13.01
hereof or such other address as to which the Trustee may give notice to the
Issuers.


 


“Credit Agreement” means that certain
credit agreement to be dated as of the date of this Indenture among Niska U.S.,
AECO Gas Storage Partnership, Niska GS Holdings I, L.P., Niska GS Holdings II,
L.P., Royal Bank of Canada, as Administrative Agent and Collateral Agent and
the other lenders party thereto, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, and in each case as amended, restated, modified, renewed, refunded,
replaced or refinanced (including refinancing in whole or in part with any
capital markets transaction) from time to time.


 


7

















 


“Credit Facilities” means one or more debt
facilities (including, without limitation, the Credit Agreement) or commercial
paper facilities, in each case with banks or other institutional lenders or
institutional investors providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) and/or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced (including
refinancing in whole or in part with any capital markets transaction) in whole
or in part from time to time.


 


“Current Hedge Contract” means all Hedge Contracts other than
Long Term Hedge Contracts.


 


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


 


“Default” means
any event that is, or with the passage of time or the giving of notice or both
would be, an Event of Default.


 


“Definitive Unit”
means a certificated Unit registered in the name of the Holder thereof and
issued in accordance with Section 2.06 hereof, substantially in the form
of Exhibit A3 hereto, comprised of Notes registered in the name of such
Holder and issued in accordance with Section 2.06 hereof substantially in
the form of Exhibit A1 hereto (in the case of a U.S. Note) and Exhibit A2
hereto (in the case of a Canadian Note) hereto, except that such Unit shall not
bear the Global Unit Legend and shall not have the “Schedule of Exchanges of
Interests in the Global Unit” attached thereto.


 


“Depositary”
means, with respect to the Units issuable or issued in whole or in part in
global form, the Person specified in Section 2.03 hereof as the Depositary
with respect to the Units, and any and all successors thereto appointed as
depositary hereunder and having become such pursuant to the applicable
provision of this Indenture.


 


“Designated Non-cash Consideration” means
the Fair Market Value of non-cash consideration received by the Company or one
of its Restricted Subsidiaries in connection with an Asset Sale that is so
designated as “Designated Non-cash Consideration” pursuant to an Officers’
Certificate, setting forth the basis of such valuation, less the amount of cash
or Cash Equivalents received in connection with a subsequent sale of such Designated
Non-cash Consideration.


 


“Development Project Acquisition” means the
acquisition of an entity or entities or the assets of an entity or entities
formed for the purpose of constructing, developing or acquiring one or more
facilities engaged, or to be engaged following construction, in a Permitted
Business or assets useful in a Permitted Business.


 


“Disqualified Stock”
means (a) in the case of the Company or any of its Restricted
Subsidiaries, any Capital Stock that, by its terms (or by the terms of any
security into which it is convertible, or for which it is exchangeable, in each
case, at the option of the holder of the Capital Stock), or upon the happening
of any event, matures or is mandatorily redeemable for cash, pursuant to a
sinking fund obligation or otherwise, or redeemable for cash at the option of
the holder of the Capital Stock, in whole or in part, on or prior to the date
that is ninety-one (91) days after the date on which the Notes mature and (b) in
the case of any Restricted Subsidiary of the Company, any other Capital Stock
other than any common equity with no preferences, privileges, and no cash
redemption or repayment provisions. Notwithstanding the preceding sentence, any
Capital Stock that would constitute Disqualified Stock solely because the
holders of the Capital Stock have the right to require the issuer thereof to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
will not constitute Disqualified Stock if (x) the terms of such Capital
Stock provide that the issuer thereof may not repurchase or redeem any such
Capital Stock pursuant to such provisions unless such repurchase or redemption
complies with Section 4.07 hereof or (y) the terms of such Capital
Stock provide that the issuer thereof may not repurchase or redeem any such
Capital Stock prior to the Company’s purchase of the Notes as is required to be
purchased pursuant to the provisions of this Indenture and incentive distribution rights shall
not constitute Disqualified Stock solely by virtue of the right of the holder
thereof to require repurchase thereof upon removal of the Managing Member
without cause. The amount of Disqualified Stock deemed to be
outstanding at any time for purposes of this Indenture will be the maximum
amount that the Company and its Restricted Subsidiaries may become obligated to
pay upon the maturity of, or pursuant to any mandatory redemption provisions
of, such Disqualified Stock, exclusive of accrued dividends.


 


8














 


“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire
Capital Stock (but excluding any debt security that is convertible into, or
exchangeable for, Capital Stock).


 


“Equity Offering”
means a sale either (1) of Equity Interests of the Company by the Company
(other than Disqualified Stock and other than to a Subsidiary of the Company)
or (2) of Equity Interests of a direct or indirect parent entity of the
Company (other than to the Company or a Subsidiary of the Company).


 


“Euroclear”
means Euroclear Bank, S.A./N.V., as operator of the Euroclear system.


 


“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“Excluded Subsidiary” means any Subsidiary (i) that
has had less than 3% of consolidated total assets or 3% of annual consolidated
revenues of the Company as reflected on the most recent annual or quarterly
financial statements delivered hereunder prior to such date; provided that all Excluded Subsidiaries taken together shall
not exceed 5% of consolidated total assets and 5% of annual consolidated
revenues of the Company as reflected on the most recent annual or quarterly
financial statements delivered hereunder prior to such date.


 


“Expansion Capital Expenditures” means cash
expenditures for Capital Improvements. 
Expansion Capital Expenditures shall not include Maintenance Capital
Expenditures or Investment Capital Expenditures.  Expansion Capital Expenditures shall include
interest (and related fees) on debt incurred to finance the construction of a
Capital Improvement and paid in respect of the period beginning on the date
that a Group Member enters into a binding obligation to commence construction
of a Capital Improvement and ending on the earlier to occur of (a) the
date that such Capital Improvement Commences Commercial Service and (b) the
date that such Capital Improvement is abandoned or disposed of.  Debt incurred or equity issued to fund
interest payments described in the immediately preceding sentence or incurred
to fund distributions in respect of equity issued (including incremental
incentive distributions related thereto) to fund the construction of a Capital
Improvement as described in clause (a)(iv) of the definition of Operating
Surplus shall also be deemed to be debt incurred to finance the construction of
a Capital Improvement.  Where capital
expenditures are made in part for Expansion Capital Expenditures and in part
for other purposes, the Managing Member shall determine the allocation between
the amounts paid for each.


 


“Existing Indebtedness”
means all Indebtedness of the Company and its Subsidiaries in existence on the
date of this Indenture, until such amounts are repaid.


 


“Fair Market Value”
means the value that would be paid by a willing buyer to an unaffiliated
willing seller in a transaction not involving distress or necessity of either
party, determined in good faith by the Company (unless otherwise provided in
this Indenture).


 


“Fixed Charge Coverage Ratio” means with
respect to any specified Person for any four-quarter reference period, the
ratio of the Consolidated Cash Flow of such Person for such period to the Fixed
Charges of such Person for such period. 
In the event that the specified Person or any of its Restricted
Subsidiaries incurs, assumes, guarantees, re-pays, repurchases, defeases or
otherwise discharges or redeems any Indebtedness (other than ordinary working
capital borrowings) or issues, repurchases or redeems preferred stock subsequent
to the commencement of the applicable four-quarter reference period and on or
prior to the date on which the event for which the calculation of the Fixed
Charge Coverage Ratio is made (the “Calculation
Date”), then the Fixed Charge Coverage Ratio will be calculated giving
pro forma effect to such incurrence, assumption, guarantee, repayment,
repurchase, redemption, defeasance of other discharge of Indebtedness, or such
issuance, repurchase or redemption of preferred stock, and the use of the
proceeds therefrom as if the same had occurred at the beginning of such period.


 


In
addition, for purposes of calculating the Fixed Charge Coverage Ratio:


 


(1)           acquisitions
that have been made by the specified Person or any of its Restricted Subsidiaries
of by any Person or any of its Restricted Subsidiaries acquired by the
specified Person or any of its Restricted Subsidiaries, including through
mergers, consolidations or otherwise (including acquisitions of assets used in a Permitted Business
and increases in ownership of Restricted Subsidiaries), and including in 


 


9

















 


each case any related financing transactions
(including repayment of Indebtedness) during the four-quarter reference period
or subsequent to such reference period and on or prior to the Calculation Date,
will be given pro forma effect as if they had occurred on the first day of the
four-quarter reference period, including any Consolidated Cash Flow and any pro
forma expense and cost reductions that have occurred or are reasonably expected
to occur, in the reasonable judgment of the chief financial or accounting
officer of the Company (regardless of whether those cost savings or operating
improvements could then be reflected in pro forma financial statements in
accordance with Regulation S-X promulgated under the Securities Act or any
other regulation or policy of the SEC related thereto);


 


(2)           the
Consolidated Cash Flow attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded;


 


(3)           the
Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, will be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of the specified
Person or any of its Restricted Subsidiaries following the Calculation Date;
and


 


(4)           interest
income reasonably anticipated by such Person to be received during the applicable
four-quarter period from cash or Cash Equivalents held by such Person or any
Restricted Subsidiary of such Person, which cash or Cash Equivalents exist on
the Calculation Date or will exist as a result of the transaction giving rise
to the need to calculate the Fixed Charge Coverage Ratio, will be included.


 


“Fixed Charges” means, with respect to any
specified Person for any period, the sum, without duplication, of:


 


(1)           the
consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including, without limitation,
amortization of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment obligations,
the interest component of all payments associated with Capital Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers’ acceptance financings), and net of the
effect of all payments made or received pursuant to interest rate Hedging Obligations;
plus


 


(2)           the
consolidated interest expense of such Person and its Restricted Subsidiaries
that was capitalized during such period; plus


 


(3)           any
interest expense on Indebtedness of another Person that is guaranteed by such
Person or one of its Restricted Subsidiaries or secured by a Lien on assets of
such Person or one of its Restricted Subsidiaries, whether or not such
guarantee or Lien is called upon; plus


 


(4)           all
dividends, whether paid or accrued and whether or not in cash, on any series of
Disqualified Stock of such Person or any of its Restricted Subsidiaries, other
than dividends on Equity Interests payable solely in Equity Interests of the
Company (other than Disqualified Stock) or to the Company or a Restricted
Subsidiary of the Company, in each case, on a consolidated basis and in accordance
with GAAP.


 


“GAAP” means
generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
have been approved by a significant segment of the accounting profession, which
are in effect from time to time.


 


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


 


“Global Units”
means, individually and collectively, each of the Restricted Global Units and
the Unrestricted Global Units deposited with or on behalf of and registered in
the name of the Depository or its nominee, 


 


10

















 


substantially in the form of
Exhibit A3 hereto, comprised of Notes registered in the name of the
Depository or such nominee substantially in the form of Exhibit A1 hereto
(in the case of a U.S. Note) and Exhibit A2 hereto (in the case of a
Canadian Note), and that bears the Global Unit Legend and that has the “Schedule
of Exchanges of Interests in the Global Unit” attached thereto, issued in
accordance with Section 2.01, 2.06(b)(3), 2.06(b)(4), 2.06(d)(1) or
2.06(d)(2) hereof.


 


“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of
America, and the payment for which the United States of America pledges its
full faith and credit.


 


“Group Member” means a member of the
Company Group.


 


“Guarantee”
means a guarantee other than by endorsement of negotiable instruments for
collection in the ordinary course of business, direct or indirect, in any
manner including, without limitation, by way of a pledge of assets or through
letters of credit or reimbursement agreements in respect thereof, of all or any
part of any Indebtedness (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets, goods,
securities or services, to take or pay or to maintain financial statement
conditions or otherwise).


 


“Guarantors” means (i) with respect to
the U.S. Notes (a) prior to a Qualified MLP IPO, Niska Holdings I, Niska
Holdings II, and all of the Restricted Subsidiaries of Niska Holdings I (other
than the U.S. Issuers) and Niska Holdings II (including the Canadian Issuers)
and (b) after a Qualified MLP IPO, the MLP and each of its Restricted
Subsidiaries (including the Canadian Issuers, but not the U.S. Issuers and
Excluded Subsidiaries) and (ii) with respect to the Canadian Notes, (a) prior
to a Qualified MLP IPO, Niska Holdings I, Niska Holdings II, and all of the
Restricted Subsidiaries of Niska Holdings I (including the U.S. Issuers) and
Niska Holdings II (other than the Canadian Issuers) and (b) after a
Qualified MLP IPO, the MLP and each of its Restricted Subsidiaries (including
the U.S. Issuers, but not the Canadian Issuers and Excluded Subsidiaries).


 


“Hedge Contract” means any exchange, swap,
forward, cap, floor, collar or other similar agreement or arrangement that is
entered into for the purpose of hedging the Company Group’s exposure to fluctuations
in the price of hydrocarbons, interest rates, basis differentials or currency
exchange rates in their operations or financing activities and not for
speculative purposes.


 


“Hedged Inventory Transaction” means a
transaction in which the Company or any of its Restricted Subsidiaries
purchases Hydrocarbons or establishes a position using New York Mercantile
Exchange or over-the-counter contracts to purchase Hydrocarbons, and within one
business day of such purchase transactions, either (1) establishes one or
more positions using New York Mercantile Exchange or over-the-counter futures
contracts to resell at a date after the delivery date of Hydrocarbons as so
purchased, or (2) enters into a contract with that Person or another Person
to resell at a date after such delivery date, a similar aggregate quantity and
quality of Hydrocarbons as so purchased, and at an aggregate price equal to or
greater than the Indebtedness incurred for the Hydrocarbons so purchased by the
Company or such Restricted Subsidiary.


 


“Hedging Obligations” means, with respect
to any Person, the obligations of such Person under swap, option, 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
the Person in whose name a Unit is registered.


 


“Hydrocarbons” means crude oil, natural
gas, casinghead gas, drip gasoline, natural gasoline, condensate, distillate,
liquid hydrocarbons, gaseous hydrocarbons and all constituents, elements or
compounds thereof and products refined or processed therefrom.


 


“IAI Global Unit”
means a Global Unit, substantially in the form of Exhibit A3 hereto
bearing the Global Unit Legend and the Private Placement Legend, comprised of
Notes substantially in the form of Exhibit A1 hereto (in the case of a
U.S. Note) and Exhibit A2 hereto (in the case of a Canadian Note) bearing
the Private Placement Legend, each deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will 


 


11

















 


be issued in a denomination
equal to the outstanding principal amount of the Units (and the corresponding
principal amount of Notes) of the related Issuers sold to Institutional
Accredited Investors.


 


“Indebtedness”
means, with respect to any specified Person, any indebtedness of such Person
(excluding accrued expenses and trade payables), whether or not contingent:


 


(1)           in
respect of borrowed money;


 


(2)           evidenced
by bonds, notes, debentures or similar instruments;


 


(3)           in
respect of banker’s acceptances or letters of credit (other than obligations in
respect of letters of credit securing obligations (other than obligations
described in (1) or (2) above or (4) below) entered into in the
ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if and to the extent drawn upon, such drawing is
reimbursed no later than the tenth business day following receipt by such
Person or a demand for reimbursement);


 


(4)           representing
Capital Lease Obligations;


 


(5)           representing
the balance deferred and unpaid of the purchase price of any property or services
due more than six months after such property is acquired or such services are
completed; or


 


(6)           representing
any Hedging Obligations,


 


if and to the extent any of the preceding
items (other than letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of the specified Person prepared in accordance
with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of
others secured by a Lien on any asset of the specified Person (whether or not
such Indebtedness is assumed by the specified Person), but only to the extent
of the lesser of (x) the Fair Market Value of the assets subject to such
Lien, or (y) the amount of Indebtedness secured by such Lien and, to the extent
not otherwise included, the Guarantee by the specified Person of any
Indebtedness of any other Person. Indebtedness shall be calculated without
giving effect to the effects of Statement of Financial Accounting Standards No. 133
and related interpretations to the extent such effects would otherwise increase
or decrease an amount of Indebtedness for any purpose under this Indenture as a
result of accounting for any embedded derivatives created by the terms of such
Indebtedness.


 


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


 


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


 


“Initial Purchasers” means Morgan Stanley &
Co. Incorporated, UBS Securities LLC, Goldman, Sachs & Co., Credit
Suisse Securities (USA) LLC, RBC Capital Markets Corporation, Barclays Capital
Inc., Scotia Capital (USA) Inc. and Natixis Bleichroeder LLC, U.S. Bancorp
Investments, Inc., Citigroup Global Markets Inc., Daiwa Securities America
Inc. and BNP Paribas Securities Corp.


 


“Initial Units”
means the first $800,000,000 in aggregate principal amount of Units, comprised
of $175,000,000 aggregate principal amount of U.S. Notes and $625,000,000
aggregate principal amount of Canadian Notes, issued under the Indenture on the
date hereof.


 


“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, which is not also a QIB.


 


“Interim Capital Transactions” means the
following transactions:  (a) borrowings,
refinancings or refundings of indebtedness (other than Working Capital
Borrowings and other than for items purchased on open account or for a deferred
purchase price in the ordinary course of business) by any Group Member and
sales of debt securities of any Group Member; (b) sales of equity
interests of any Group Member; and (c) sales or other voluntary or 


 


12

















 


involuntary dispositions of any assets of any Group
Member other than (i) sales or other dispositions of inventory, accounts
receivable and other assets in the ordinary course of business, and (ii) sales
or other dispositions of assets as part of normal retirements or replacements.


 


“Investment Capital Expenditures” means
capital expenditures that are neither Expansion Capital Expenditures nor Maintenance
Capital Expenditures.


 


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


 


“Investments”
means, with respect to any Person, all direct or indirect investments by such
Person in other Persons (including Affiliates) in the forms of loans (including
Guarantees or other obligations), advances or capital contributions (excluding
commission, travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for consideration
of Indebtedness, Equity Interests or other securities, together with all items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP. Except as otherwise provided in this Indenture, the
amount of an Investment will be determined at the time the Investment is made
and without giving effect to subsequent changes in value.


 


“Joint Venture” means (i) any Person that is not a
direct or indirect Subsidiary of the Company in which the Company or any of its
Restricted Subsidiaries makes any Investment (provided that, for purposes of
the proviso to clause (1) of the definition of Consolidated Net Income,
the Company and its Restricted Subsidiaries own at least 20% of the Equity
Interests of such Person on a fully diluted basis or control the management of
such Person pursuant to a contractual agreement) or (ii) an Unrestricted
Subsidiary of the Company that (a) has no Indebtedness and (b) was an
Affiliate of the Company as of the date of this Indenture.


 


“Legal Holiday”
means a Saturday, a Sunday or a day on which banking institutions (1) in
the City of New York, the City of Calgary or the City of Toronto, (2) in
the City in which the Corporate Trust Office of the Trustee is located or (3) at
a place of payment are authorized by law, regulation or executive order to
remain closed. If a payment date is a Legal Holiday at a place of payment,
payment may be made at that place on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue on such payment for the intervening
period.


 


“Lien” means,
with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and any filing
of or agreement to give any financing statement relating to a lien on an asset
under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.


 


“Long Term Hedge Contract” means any Hedge Contract with a
specified termination date more than twelve months after the date the Hedge Contract
is entered into.


 


“Maintenance Capital Expenditures” means
cash expenditures (including expenditures for the addition or improvement to or
replacement of the capital assets owned by the Company Group or for the
acquisition of existing, or the construction of new, capital assets) made to
maintain the operating capacity or net income of the Company Group.


 


“Managing Member” means the business entity
with the ultimate authority to manage the business and operations of the MLP
(which may be the MLP or its successors).


 


“Member” means any holder of Membership Interests.


 


“Membership
Interests” means
the Capital Stock of the MLP.


 


“MLP” means an entity formed to acquire,
directly or indirectly, all of the Equity Interests of the Issuers, in order to
undertake an initial public offering of its Capital Stock and that, immediately
following consummation of such offering, will be treated as a partnership for
U.S. federal income tax purposes.


 


13

















 


“MLP Formation Transactions” means (i) the
legal formation of the MLP, (ii) the acquisition, directly or indirectly,
of the Issuers by the MLP, (iii) the borrowing under Credit Facilities of
an amount not to exceed the anticipated gross proceeds of a Qualified MLP IPO
and the distribution of that amount to the Sponsors immediately prior to such
Qualified MLP IPO, (iv) transactions related to the Qualified MLP IPO
described in the Offering Memorandum under the caption “Summary” and (v) transactions
reasonably related thereto that the Company has determined by an officer of the
Company not to have a material adverse effect on the holders of the Units.


 


“MLP Subsidiary” means, with respect to any
Person, (a) a corporation of which more than 50% of the voting power of
shares entitled (without regard to the occurrence of any contingency) to vote
in the election of directors or other governing body of such corporation is
owned, directly or indirectly, at the date of determination, by such Person, by
one or more MLP Subsidiaries (as defined, but excluding subsection (d) of
this definition) of such Person or a combination thereof, (b) a
partnership (whether general or limited) in which such Person or a MLP
Subsidiary (as defined, but excluding subsection (d) of this definition)
of such Person is, at the date of determination, a general or limited partner
of such partnership, but only if more than 50% of the partnership interests of
such partnership (considering all of the partnership interests of the partnership
as a single class) is owned, directly or indirectly, at the date of
determination, by such Person, by one or more MLP Subsidiaries (as defined, but
excluding subsection (d) of this definition) of such Person, or a
combination thereof, (c) any other Person (other than a corporation or a
partnership) in which such Person, one or more MLP Subsidiaries (as defined,
but excluding subsection (d) of this definition) of such Person, or a
combination thereof, directly or indirectly, at the date of determination, has (i) at
least a majority ownership interest or (ii) the power to elect or direct
the election of a majority of the directors or other governing body of such
Person or (d) any other Person in which such Person, one or more MLP
Subsidiaries (as defined, but excluding subsection (d) of this definition)
of such Person, or a combination thereof, directly or indirectly, at the date
of determination, has (i) less than a majority ownership interest or (ii) less
than the power to elect or direct the election of a majority of the directors
or other governing body of such Person, provided that (A) such Person, one
or more MLP Subsidiaries (as defined, but excluding this subsection (d) of
this definition) of such Person, or a combination thereof, directly or indirectly,
at the date of the determination, has at least a 20% ownership interest in such
other Person, (B) such Person accounts for such other Person (under U.S.
GAAP, as in effect on the later of the date of investment in such other Person
or material expansion of the operations of such other Person) on a consolidated
or equity accounting basis, (C) such Person has directly or indirectly
material negative control rights regarding such other Person including over
such other Person’s ability to materially expand its operations beyond that
contemplated at the date of investment in such other Person, and (D) such
other Person is (i) formed and maintained for the sole purpose of
developing or owning a natural gas storage facility, and (ii) obligated
under its constituent documents, or as a result of a unanimous agreement of its
owners, to distribute to its owners all of its income on at least an annual
basis (less any cash reserves that are approved by such Person).


 


“Moody’s” means
Moody’s Investors Service, Inc.


 


“Net Income” means, with respect to any
specified Person, the net income (loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however:


 


(1)           any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with: 
(a) any Asset Sale; or (b) the disposition of any securities
by such Person or any of its Subsidiaries or the extinguishment of any
Indebtedness of such Person or any of its Subsidiaries; and


 


(2)           any
extraordinary gain (but not loss), together with any related provision for
taxes on such extraordinary gain (but not loss).


 


“Net Proceeds”
means the aggregate cash proceeds and Cash Equivalents received by the Company
or any of its Restricted Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash or Cash Equivalents received upon the sale or
other disposition of any non-cash consideration received in any Asset Sale),
net of (1) the direct costs relating to such Asset Sale, including,
without limitation, legal, accounting and investment banking fees and
discounts, and sales commissions, and any other fees and expenses, including
relocation expenses incurred as a result of the Asset Sale, taxes paid or
payable as a result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing arrangements, (2) amounts required to be applied
to the repayment of Indebtedness, other than Indebtedness under a Credit Facility,
secured by a Lien on the asset or assets 


 


14

















 


that were the subject of such Asset Sale and (3) any reserve for
adjustment or indemnification obligations in respect of the sale price of any
asset or assets that were the subject of such Asset Sale established in
accordance with GAAP.


 


“Niska
Holdings I” means Niska GS Holdings I, L.P.


 


“Niska
Holdings II” means Niska GS Holdings II, L.P.


 


“Non-Recourse
Debt”
means Indebtedness:


 


(1)           as
to which neither the Company nor any of its Restricted Subsidiaries (a) provides
credit support of any kind (including any undertaking, agreement or instrument
that would constitute Indebtedness), (b) is directly or indirectly liable
as a guarantor or otherwise, or (c) is the lender; and


 


(2)           as
to which the lenders have been notified in writing that they will not have any
recourse to the stock or assets of the Company or any of its Restricted
Subsidiaries.


 


For
purposes of determining compliance with Section 4.09 hereof, in the event
that any Non-Recourse Debt of any Company’s Unrestricted Subsidiaries ceases to
be Non-Recourse Debt of such Unrestricted Subsidiary, such event will be deemed
to constitute an incurrence of Indebtedness by a Restricted Subsidiary of the
Company.


 


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


 


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


 


“Obligations” means any principal, premium,
if any, interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization, whether or not a claim for
post-filing interest is allowed in such proceeding), penalties, fees, charges,
expenses, indemnifications, reimbursement obligations, damages, guarantees, and
other liabilities or amounts payable under the documentation governing any
Indebtedness or in respect thereto.


 


“Offering Memorandum”
means the Offering Memorandum, dated February 26, 2010, relating to the
offering of the Initial Units.


 


“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, the Controller, the Secretary, any Assistant Secretary
or any Vice-President of such Person.


 


“Officers’ Certificate”
means with respect to any person, a certificate signed on behalf of the Person
by two Officers of the Person, one of whom, solely in respect of the Officers’
Certificate required by Section 4.04(a) hereof, must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Person, that, if applicable, meets the
requirements of Section 13.03 hereof.


 


“Operating Agreement” means the Amended and
Restated Agreements of Limited Partnership of Niska Holdings I and Niska
Holdings II as in effect as of the date of this Indenture.


 


“Operating Expenditures” means all Company
Group cash expenditures (or the Company’s proportionate share of expenditures
in the case of MLP Subsidiaries that are not wholly owned), including taxes,
reimbursements of expenses of the Managing Member, payments made in the
ordinary course of business underlying Hedge Contracts, repayment of Working
Capital Borrowings, debt service payments and capital expenditures, subject to
the following:


 


(a)           repayment
of Working Capital Borrowings deducted from Operating Surplus pursuant to
clause (b)(iii) of the definition of Operating Surplus shall not
constitute Operating Expenditures when actually repaid;


 


15

















 


(b)           payments
(including prepayments and prepayment penalties) of principal of and premium on
indebtedness other than Working Capital Borrowings shall not constitute
Operating Expenditures;


 


(c)           Operating
Expenditures shall not include (i) Expansion Capital Expenditures or Investment
Capital Expenditures, (ii) payment of transaction expenses relating to
Interim Capital Transactions, (iii) distributions to Members or (iv) repurchases
of Membership Interests of any class, other than repurchases of Membership
Interests to satisfy obligations under employee benefit plans, or
reimbursements of expenses of the Managing Member for such purchases.  Where capital expenditures are made in part
for Expansion Capital Expenditures and in part for other purposes, the Managing
Member shall determine the allocation between the amounts paid for each; and


 


(d)           payments
made in connection with the termination of any Long Term Hedge Contract prior
to the expiration of its stipulated settlement or termination date shall be
excluded and amounts paid in connection with the initial purchase of a Long
Term Hedge Contract shall be amortized over the life of the applicable Hedge
Contract.


 


“Operating Surplus” means, with respect to
any period, on a cumulative basis and without duplication,


 


(a)           the
sum of (i) $50 million, (ii) all cash receipts of the Company Group
(or the Company’s proportionate share of cash receipts in the case of MLP
Subsidiaries that are not wholly owned) for the period beginning on the IPO
Date and ending on the last day of such period, but excluding cash receipts
from Interim Capital Transactions and the termination of Long Term Hedge
Contracts (provided that cash receipts from the termination of a Long Term
Hedge Contract prior to its specified termination date shall be included in
Operating Surplus in equal quarterly installments over the remaining scheduled
life of such Hedge Contract), (iii) all cash receipts of the Company Group
(or the Company’s proportionate share of cash receipts in the case of MLP
Subsidiaries that are not wholly owned) after the end of such period but on or
before the date of determination of Operating Surplus with respect to such
period resulting from Working Capital Borrowings and (iv) the amount of
distributions paid on equity (including incremental incentive distributions)
issued to finance all or a portion of the construction, acquisition or
improvement of a Capital Improvement and paid in respect of the period
beginning on the date that the Group Member enters into a binding obligation to
commence construction or improvement of, or to acquire, such Capital
Improvement and ending on the earlier to occur of (A) the date that such
Capital Improvement Commences Commercial Service and (B) the date that it
is abandoned or disposed of (equity issued to fund the construction period
interest payments on debt incurred (including periodic net payments under
related interest rate swap agreements), or construction period distributions on
equity issued, to finance the construction, acquisition or improvement of a
Capital Improvement shall also be deemed to be equity issued to finance the
construction, acquisition or improvement of a Capital Improvement for purposes
of this clause (iv)), less


 


(b)           the
sum of (i) Operating Expenditures for the period beginning on the IPO Date
and ending on the last day of such period, (ii) the amount of cash
reserves established by the Managing Member (or the Company’s proportionate
share of cash reserves in the case of MLP Subsidiaries that are not wholly
owned) to provide funds for future Operating Expenditures, (iii) all
Working Capital Borrowings not repaid within twelve months after having been
incurred and (iv) any loss realized on disposition of an Investment
Capital Expenditure; provided, however, that disbursements made (including
contributions to a Group Member or disbursements on behalf of a Group Member)
or cash reserves established, increased or reduced after the end of such period
but on or before the date of determination of cash to be distributed with
respect to such period shall be deemed to have been made, established,
increased or reduced, for purposes of determining Operating Surplus, within
such period if the Managing Member so determines.


 


Cash
receipts from an Investment Capital Expenditures shall be treated as cash
receipts only to the extent they are a return on principal, but return of
principal shall not be treated as cash receipts.


 


“Opinion of Counsel”
means an opinion reasonably acceptable to the Trustee from legal counsel that
meets the requirements of Section 13.03 hereof. The counsel may be an
employee of or counsel to the Company or any Subsidiary of the Company.


 


16

















 


“Participant”
means, with respect to the Depositary, Euroclear or Clearstream, a Person who
has an account with the Depositary, Euroclear or Clearstream, respectively
(and, with respect to DTC, shall include Euroclear and Clearstream).


 


“Permitted Asset Swap”
means any disposition of assets by the Company or any of its Restricted
Subsidiaries to any Person (other than the Company or any Subsidiary of the
Company) in which at least 95% of the consideration received by the Company and
the Company’s Restricted Subsidiary consists of:


 


(1)           all
or substantially all of the assets of, or any Capital Stock of, another
Permitted Business, if, after giving effect to any such acquisition of Capital
Stock, the Permitted Business is or becomes a Restricted Subsidiary or is
merged into or consolidated with the Company or any Restricted Subsidiary;
and/or


 


(2)           other
assets that are not classified as current assets under GAAP and that are used
or useful in a Permitted Business,


 


provided that any
consideration not constituting assets or property of a kind usable by the
Company or its Restricted Subsidiaries in the Permitted Business received by
the Company or any of its Restricted Subsidiaries in connection with any Asset
Sale that constitutes a Permitted Asset Swap shall constitute Net Proceeds from
an Asset Sale pursuant to Section 4.10 hereof.


 


“Permitted Business” means either (1) purchasing,
gathering, transporting, marketing, selling, distributing, storing or otherwise
handling Hydrocarbons or activities or services reasonably related or ancillary
thereto, including entering into Hedging Obligations to support these
businesses or (2) any other business that generates gross income that
constitutes “qualifying income” under Section 7704(d) of the Code.


 


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


 


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


 


(2)           if
such Unrestricted Subsidiary or Joint Venture has outstanding Indebtedness at
the time of such Investment, either (a) all such Indebtedness is
Non-Recourse Debt or (b) any such Indebtedness of such Unrestricted
Subsidiary or Joint Venture that is recourse to the Company or any of its
Restricted Subsidiaries (which shall include, without limitation, all
Indebtedness of such Unrestricted Subsidiary or Joint Venture for which the
Company or any of its Restricted Subsidiaries may be directly or indirectly,
contingently or otherwise, obligated to pay, whether pursuant to the terms of
such Indebtedness, by law or pursuant to any guarantee, including, without
limitation, any “claw-back,” “make-well” or “keep-well” arrangement) could, at
the time such Investment is made, be incurred at that time by the Company and
its Restricted Subsidiaries under the Fixed Charge Coverage Ratio test set
forth in Section 4.09(a) hereof; and


 


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


 


“Permitted Hedged Inventory Obligations”
means Indebtedness of the Company or any of its Restricted Subsidiaries under
letters of credit, bankers’ acceptances or borrowed money obligations, or in
lieu of or in addition to such letters of credit or borrowed money, guarantees
of such Indebtedness or other obligations of the Company or any Restricted
Subsidiary of the Company by the Company or any other Restricted Subsidiary of
the Company, as applicable, related to a Hedged Inventory Transaction, provided that:


 


(1)           if
the Company or such Restricted Subsidiary has entered into such a contract to
resell at a subsequent date, as distinguished from establishing a position
using New York Mercantile Exchange or over-the-counter future contracts to
resell at a subsequent date, (a) the Person with which the Company or 


 


17

















 


such Restricted Subsidiary
has such contract to sell has an Investment Grade Rating, or in lieu thereof, a
Person guaranteeing the payment of such obligated Person has an Investment
Grade Rating, or (b) such Person posts a letter of credit in favor of the
Company or such Restricted Subsidiary with respect to such contract; and


 


(2)           for
the period commencing on the date the Company or such Restricted Subsidiary is
obligated to take delivery of such Hydrocarbons so purchased by it and until
and including the date on which delivery to the purchaser is fulfilled, the
Company or such Restricted Subsidiary has the right and ability to store such
quantity and quality of Hydrocarbons in storage facilities or storage capacity
owned, leased, operated or otherwise controlled by the Company or any Restricted
Subsidiary of the Company or in pipelines, or such Hydrocarbons are in transit
to such facilities.


 


“Permitted Holder”
means the Sponsors and any group (within the meaning of Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act or any successor provision) of
which any of the Sponsors are members; provided
that, in the case of such group and without giving effect to the existence of
such group or any other group, such Sponsors, collectively, have beneficial
ownership of more than 50% of the total voting power of the Voting Stock of the
Company or any of its direct or indirect parent companies.


 


“Permitted Investments” means:


 


(1)           any
Investment in the Company or in a Restricted Subsidiary of the Company;


 


(2)           any
Investment in Cash Equivalents;


 


(3)           any
Investment by the Company or any Restricted Subsidiary of the Company in a Person,
if as a result of such Investment:


 


(a)           such
Person becomes a Restricted Subsidiary of the Company; or


 


(b)           such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its properties or assets to, or is liquidated
into, the Company or a Restricted Subsidiary of the Company;


 


(4)           any
Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 4.10
hereof;


 


(5)           any
Investment in any Person solely in exchange for the issuance of Equity
Interests (other than Disqualified Stock) of the Company;


 


(6)           any
Investments received in compromise of obligations of trade creditors or
customers that were incurred in the ordinary course of business, including
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor or customer, or as a result of a
foreclosure by the Company or any of its Restricted Subsidiaries with respect
to any secured Investment in default;


 


(7)           Hedging
Obligations permitted to be incurred under Section 4.09 hereof;


 


(8)           Permitted
Business Investments;


 


(9)           any
Investment by the Company or any of its Restricted Subsidiaries in any Person
that was previously a Subsidiary of the Company but ceases to be such as a
result of a reduction in the Company’s direct or indirect ownership interests
in such Person in connection with a public offering of Capital Stock of such
Person; provided, that at the
time such Person ceases to be a Subsidiary of the Company and immediately after
giving effect thereto, no “person” (as that term is used in Section 13(d)(3) of
the Exchange Act) is or becomes the Beneficial Owner, directly or indirectly,
of a percentage of the total Voting


 


 


18














 


Stock of such Person,
measured by voting power rather than number of shares, greater than the
percentage of the total Voting Stock of such Person, measured by voting power
rather than number of shares, owned by the Company at such time;


 


(10)         any
Investment made in connection with MLP Formation Transactions; and


 


(11)         other
Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent
changes in value), when taken together with all other Investments made pursuant
to this clause (11) that are at the time outstanding, not to exceed the greater
of $25.0 million or 2.5% of the Consolidated Net Tangible Assets of the Company.


 


“Permitted Liens” means:


 


(1)           Liens
securing any Indebtedness under any of the Credit Facilities and all
Obligations and Hedging Obligations relating thereto;


 


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


 


(3)           Liens
on property of a Person existing at the time such Person is merged or amalgamated
with or into or consolidated with the Company or any Restricted Subsidiary of
the Company; provided that such
Liens were in existence prior to the contemplation of such merger, amalgamation
or consolidation and do not extend to any assets other than those of the Person
merged or amalgamated into or consolidated with the Company or the Restricted
Subsidiary;


 


(4)           Liens
on property (including Capital Stock) existing at the time of acquisition of
the property by the Company or any Restricted Subsidiary of the Company; provided that such Liens were in existence
prior to the contemplation of such acquisition;


 


(5)           any
interest or title of a lessor to the property subject to a Capital Lease
Obligation or an operating lease;


 


(6)           Liens
on any property or asset acquired, constructed or improved by the Company or
any of its Restricted Subsidiaries (a “Purchase
Money Lien”), which (a) are in favor of the seller of such property
or assets, in favor of the Person developing, constructing, repairing or
improving such asset or property, or in favor of the Person that provided the
funding for the acquisition, development, construction, repair or improvement
cost, as the case may be, of such asset or property, (b) are created
within 360 days after the acquisition, development, construction, repair or
improvement, (c) secure the purchase price or development, construction,
repair or improvement cost, as the case may be, of such asset or property in an
amount up to 100% of the Fair Market Value of such acquisition, construction or
improvement of such asset or property, and (d) are limited to the asset or property so
acquired, constructed or improved (including the proceeds thereof, accessions
thereto and upgrades thereof);


 


(7)           Liens
existing on the date of this Indenture other than Liens securing the Credit Facilities;


 


(8)           Liens
to secure the performance of tenders, bids, statutory obligations, surety or
appeal bonds, government contracts, trade contracts, leases, performance bonds
or other obligations of a like nature incurred in the ordinary course of
business;


 


(9)           Liens
on and pledges of the Equity Interests of any Unrestricted Subsidiary or any
Joint Venture owned by the Company or any Restricted Subsidiary of the Company
to the extent securing Non-Recourse Debt or other Indebtedness of such
Unrestricted Subsidiary or Joint Venture;


 


(10)         Liens
on pipelines or pipeline facilities or products shipped on such pipelines that
arise by operation of law;


 


19

















 


(11)         Liens
arising under operating agreements, joint venture agreements, partnership agreements,
oil and gas leases, access agreements, farmout agreements, division orders,
contracts for sale, transportation or exchange of crude oil, natural gas and
other Hydrocarbons, unitization and pooling declarations and agreements, area
of mutual interest agreements and other agreements arising in the ordinary
course of business of the Company and its Restricted Subsidiaries that are
customary in the Permitted Business;


 


(12)         Liens
upon specific items of inventory, receivables or other goods or proceeds of the
Company or any of its Restricted Subsidiaries securing such Person’s
obligations in respect of letters of credit, bankers’ acceptances or
receivables securitizations issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory, receivables or
other goods and permitted by Section 4.09 hereof;


 


(13)         Liens
securing Obligations of an Issuer or any Guarantor under the Notes or the Guarantees,
as the case may be;


 


(14)         Liens
securing any Indebtedness equally and ratably with all Obligations due under
the Notes or any Guarantee pursuant to a contractual covenant that limits Liens
in a manner substantially similar to Section 4.12 hereof;


 


(15)         Liens
to secure performance of Hedging Obligations of the Company or any of its Restricted
Subsidiaries;


 


(16)         Liens
incurred in the ordinary course of business of the Company or any Restricted Subsidiary
of the Company with respect to obligations that do not exceed 5% of the
Consolidated Net Tangible Assets of the Company;


 


(17)         any
Lien renewing, extending, refinancing or refunding a Lien permitted by clauses (1) through
(15) above; provided that (a) the
principal amount of the Indebtedness secured by such Lien is not increased and (b) no
assets encumbered by any such Lien other than the assets permitted to be encumbered
immediately prior to such renewal, extension, refinance or refund are
encumbered thereby; and


 


(18)         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.


 


“Permitted Operating Obligations” means
Indebtedness of the Company or any Restricted Subsidiary of the Company in
respect of one or more standby letters of credit, bid, performance or surety
bonds, or other reimbursement obligations, issued for the account of, or
entered into by, the Company or any Restricted Subsidiary of the Company in the
ordinary course of business (excluding obligations related to the purchase by
the Company or any Restricted Subsidiary of the Company of Hydrocarbons for
which the Company or such Restricted Subsidiary has contracts to sell), or in
lieu of any thereof or in addition to any thereto, guarantees and letters of
credit supporting any such obligations and Indebtedness (in each case, other
than for any obligations for borrowed money, other than borrowed money
represented by any such letter of credit, bid, performance or surety bond, or
reimbursement obligation itself, or any guarantee and letter of credit related
thereto).


 


“Permitted Refinancing Indebtedness” means
any Indebtedness of the Company or any of its Restricted Subsidiaries issued in
exchange for, or the net proceeds of which are used to extend, refinance,
renew, replace, defease or refund or discharge other Indebtedness of the
Company or any of its Restricted Subsidiaries (other than intercompany
Indebtedness); provided that:


 


(1)           the
principal amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal amount (or accreted
value, if applicable) of the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded or discharged (plus all accrued interest on the
Indebtedness and the amount of all expenses and premiums incurred in connection
therewith);


 


20

















 


(2)           such
Permitted Refinancing Indebtedness has a final maturity date later than the
final maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded;


 


(3)           if
the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
or discharged is subordinated in right of payment to the Notes or the Notes
Guarantees, such Permitted Refinancing Indebtedness is subordinated in right of
payment to the Notes or the Notes Guarantees on terms at least as favorable to
the Holders of Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded or discharged; and


 


(4)           such
Indebtedness is incurred by the Company or a Guarantor if the Company or a Guarantor
is the obligor on the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded.


 


Notwithstanding
the preceding, any Indebtedness incurred under Credit Facilities pursuant Section 4.09
hereof shall
be subject only to the refinancing provision in the definition of Credit
Facilities and not pursuant to the requirements set forth in this definition of
Permitted Refinancing Indebtedness.


 


“Person” means any individual, corporation
(including an unlimited liability company), partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity; provided that when Person is
used to refer to the Company, it shall refer (i) prior to a Qualified MLP
IPO, to Niska Holdings I and Niska Holdings II, together on a combined basis
and (ii) after a Qualified MLP IPO, to the MLP.


 


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


 


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


 


“Qualified MLP IPO” means an initial offer
and sale of common units of the MLP in an underwritten public offering for cash
pursuant to a registration statement that has been declared effective by the
SEC pursuant to the Securities Act (other than a registration statement on Form S-4
or Form S-8 or otherwise relating to Equity Interests of the MLP issuable
under any employee benefit plan); provided,
however, that immediately after
such offering, the MLP s treated as a partnership for U.S. federal income tax
purposes and qualifies for the exception contained in Section 7704(c) of
the Code for partnerships with “qualifying income” (as defined in Section 7704(d) of
the Code).


 


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


 


“Ratings Categories” means:


 


(1)           with
respect to S&P, any of the following categories:  AAA, AA, A, BBB, BB, B, CCC, CC, C and D (or
equivalent successor categories); and


 


(2)           with
respect to Moody’s, any of the following categories:  Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or
equivalent successor categories).


 


“Ratings Decline” means a decrease in the
rating of the Units by either Moody’s or S&P by one or more gradations
(including gradations within Rating Categories as well as between Rating
Categories).  In determining whether the
rating of the Units has decreased by one or more gradations, gradations within
Ratings Categories, namely + or—for S&P, and 1, 2 and 3 for Moody’s, will
be taken into account; for example, in the case of S&P, a ratings decline
either from BB+ to BB or BB to BB- will constitute a decrease of one gradation.


 


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


 


21

















 


“Regulation S Global Unit”
means a Regulation S Temporary Global Unit or Regulation S Permanent
Global Unit, as appropriate.


 


“Regulation S Permanent Global Unit”  means a Global Unit,
substantially in the form of Exhibit A3 hereto bearing the Global Unit
Legend and the Private Placement Legend, comprised of Notes substantially in
the form of Exhibit A1 hereto (in the case of a U.S. Note) and Exhibit A2
hereto (in the case of a Canadian Note) bearing the Private Placement Legend,
each deposited with or on behalf of, and registered in the name of, the Depositary
or its nominee, issued in a denomination equal to the outstanding principal
amount of the Regulation S Temporary Global Unit upon expiration
of the Restricted Period.


 


“Regulation S Temporary Global Unit” means a temporary Global
Unit substantially in the form of Exhibit A3 hereto bearing the
Regulation S Temporary Global Unit Legend, the Global Unit Legend and the
Private Placement Legend, comprised of Notes substantially in the form of Exhibit A1
hereto (in the case of a U.S. Note) and Exhibit A2 hereto (in the case of
a Canadian Note) bearing the Private Placement Legend, each deposited with or
on behalf of, and registered in the name of, the Depositary or its nominee  issued in a
denomination equal to the outstanding principal amount of the Units (and the
corresponding principal amount of Notes) initially sold in reliance on Rule 903
of Regulation S.


 


“Regulation S-X” means Regulation S-X promulgated by the SEC.


 


“Reporting Default” means a Default under Section 4.03
hereof after
giving effect to the grace periods referred to therein.


 


“Responsible
Officer,” when used with respect to the Trustee, means any officer
within the Corporate Trust Department of the Trustee (or any successor group of
the Trustee) and who shall have responsibility for the administration of this
Indenture and 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 Unit”
means a Definitive Unit bearing the Private Placement Legend.


 


“Restricted Global Unit”
means a Global Unit bearing the Private Placement Legend.


 


“Restricted Investment”
means an Investment other than a Permitted Investment.


 


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


 


“Restricted Subsidiary”
of a Person means any Subsidiary of the referent Person that is not 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 Group.


 


“SEC” means the
Securities and Exchange Commission.


 


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


 


22

















 


“Significant Subsidiary”
means any Restricted Subsidiary that would be a “significant subsidiary” as defined
in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such Regulation is in effect on the date of this Indenture.


 


“Sponsors” means Carlyle/Riverstone Global
Energy and Power Fund II, L.P.  and
Carlyle/Riverstone Global Energy and Power Fund III, L.P.  and their Affiliates.


 


“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 as of the
date of this Indenture, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.


 


“Subsidiary”
means, with respect to any specified Person:


 


(1)           any
corporation (including an unlimited liability company), association or other
business entity of which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of any contingency and
after giving effect to any voting agreement or stockholders’ agreement that
effectively transfers voting power) to vote in the election of directors,
managers or trustees of the corporation, association or other business entity
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person (or a combination
thereof); and


 


(2)           any
partnership or limited liability company of which (a) more than 50% of the
capital accounts, distribution rights, total equity and voting interests or
general and limited partnership interests, as applicable, are owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person or a combination thereof, whether in the form of
membership, general, special or limited partnership interests or otherwise, and
(b) such Person or any Subsidiary of such Person is a controlling general
partner or otherwise controls such entity.


 


“Treasury Rate” means, as of any redemption
date, the yield to maturity as of such redemption date of United States
Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become
publicly available at least two (2) Business Days prior to the redemption
date (or, if such Statistical Release is no longer published, any publicly
available source of similar market data)) most nearly equal to the period from
the redemption date to March 15, 2014; provided,
however, that if the period from
the redemption date to March 15, 2014, is less than one year, the weekly
average yield on actually traded United States Treasury securities adjusted to
a constant maturity of one year will be used.


 


“Trustee” means
The Bank of New York Mellon, until a successor replaces it in accordance with
the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.


 


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


 


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


 


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


 


“Unrestricted Subsidiary”
means any Subsidiary of the Company (other than an Issuer) that is designated
by the Board of Directors of the Company as an Unrestricted Subsidiary pursuant
to a resolution of the Board of Directors and any Subsidiary thereof, but only
to the extent that such Subsidiary:


 


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


 


23

















 


(2)           except
as permitted by Section 4.11 hereof, is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company;


 


(3)           is
a Person with respect to which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests or (b) to maintain or preserve such Person’s
financial condition or to cause such Person to achieve any specified levels of
operating results; and


 


(4)           has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Restricted Subsidiaries.


 


“U.S.” means the
United States.


 


“U.S. Notes” has
the meaning assigned to it in the preamble to this Indenture.


 


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


 


“Voting Stock”
of any specified Person as of any date means the Capital Stock of such Person
that is at the time entitled to vote in the election of the Board of Directors
of such Person.


 


“Weighted Average Life to
Maturity” means, when applied to any Indebtedness at any date, the
number of years obtained by dividing:


 


(1)           the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment at final maturity, in respect of the
Indebtedness, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment;
by


 


(2)           the
then outstanding principal amount of such Indebtedness.


 


“Working Capital
Borrowings” means borrowings, used solely for working capital
purposes, including the purchase of inventory and other current assets or to
fund current liabilities, and specifically excluding any borrowings for the
purchase of property, plant and equipment, acquisitions or capital improvements,
or to pay distributions to Members, made in the ordinary course of business
pursuant to a credit facility, commercial paper facility or similar financing
arrangement; provided that when incurred it is the intent of the borrower to
repay such borrowings within twelve months from sources other than additional
Working Capital Borrowings.


 


Section 1.02           Other
Definitions.


 


	
  Term

  	
   

  	
  Defined

  in

  Section

  
	
  “Additional Amounts”

  	
   

  	
  4.19

  
	
  “Affiliate Transaction”

  	
   

  	
  4.11

  
	
  “Asset Sale Offer”

  	
   

  	
  4.10

  
	
  “Authentication Order”

  	
   

  	
  2.02

  
	
  “Calculation Date”

  	
   

  	
  1.01

  
	
  “Change of Control Offer”

  	
   

  	
  4.15

  
	
  “Change of Control Payment”

  	
   

  	
  4.15

  
	
  “Change of Control Payment Date”

  	
   

  	
  4.15

  
	
  “Covenant Defeasance”

  	
   

  	
  8.03

  
	
  “DTC”

  	
   

  	
  2.03

  



 


24

















 


	
  “Event of Default”

  	
   

  	
  6.01

  
	
  “Excess Proceeds”

  	
   

  	
  4.10

  
	
  “IPO Date”

  	
   

  	
  4.07

  
	
  “Incremental Funds”

  	
   

  	
  4.07

  
	
  “incur”

  	
   

  	
  4.09

  
	
  “Judgment Conversion Date”

  	
   

  	
  13.12

  
	
  “Judgment Currency”

  	
   

  	
  13.12

  
	
  “Legal Defeasance”

  	
   

  	
  8.02

  
	
  “Note Guarantee”

  	
   

  	
  10.01

  
	
  “Offer Amount”

  	
   

  	
  3.08

  
	
  “Offer Period”

  	
   

  	
  3.08

  
	
  “Paying Agent”

  	
   

  	
  2.03

  
	
  “Payment Default”

  	
   

  	
  6.01

  
	
  “Payor”

  	
   

  	
  4.19

  
	
  “Permitted Debt”

  	
   

  	
  4.09

  
	
  “Purchase Date”

  	
   

  	
  3.08

  
	
  “Purchase Money Lien”

  	
   

  	
  1.01

  
	
  “rate of exchange”

  	
   

  	
  13.12

  
	
  “Reinstatement
  Date”

  	
   

  	
  4.20

  
	
  “Relevant Taxing
  Jurisdiction”

  	
   

  	
  4.19

  
	
  “Register”

  	
   

  	
  2.03

  
	
  “Registrar”

  	
   

  	
  2.03

  
	
  “Restricted Payments”

  	
   

  	
  4.07

  
	
  “Successor Guarantor”

  	
   

  	
  10.05

  
	
  “Successor Person”

  	
   

  	
  5.01

  
	
  “Suspended Covenants”

  	
   

  	
  4.20

  
	
  “Taxes”

  	
   

  	
  4.19

  
	
  “Unit Legend”

  	
   

  	
  2.06

  



 


Section 1.03           Rules of
Construction.


 


Unless the context otherwise requires:


 


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


 


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


 


(3)           “or”
is not exclusive;


 


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


 


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


 


(6)           provisions
apply to successive events and transactions; and


 


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


 


25

















 


ARTICLE 2

THE UNITS


 


Section 2.01           Form and
Dating.


 


(a)           General.
The U.S. Notes, the Canadian Notes and the Units and the related Trustee’s
certificates of authentication for the Notes and the Units will be
substantially in the form of Exhibit A1, A2 and A3 attached hereto, respectively.
The Units may have notations, legends or endorsements required by law, stock
exchange rule or usage; provided, that
any such notations, legends or endorsements are in a form acceptable to the
applicable Issuer.  Each Note and each
Unit will be dated the date of its authentication.


 


The terms and provisions contained in the Units will
constitute, and are hereby expressly made, a part of this Indenture and the
Issuers, the Guarantors and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Unit conflicts with the
express provisions of this Indenture, the provisions of this Indenture shall
govern and be controlling.


 


(b)           Units.
The Units issued in global form (including the Global Unit Legend thereon and
the “Schedule of Exchanges of Interests in the Global Unit” attached thereto)
will be substantially in the form of Exhibit A3, comprised of U.S. Notes
and Canadian Notes substantially in the form of Exhibit A1 and A2 attached
hereto, respectively.  Units issued in
definitive form (but without the Global Unit Legend thereon and without the “Schedule
of Exchanges of Interests in the Global Unit” attached thereto) shall be
substantially in the form of Exhibit A3 attached hereto, comprised of U.S.
Notes and Canadian Notes substantially in the form of Exhibit A1 and A2
attached hereto, respectively.  Each Unit
shall consist of $218.75 principal amount of U.S. Notes and $781.25 principal
amount of the Canadian Notes. The Notes of each Issuer may not be separately
transferred and Notes of each Issuer may not be issued, except as part of a
Unit.  The Units shall be issued in
denominations of $2,000 and integral multiples of $1,000 in excess thereof, and
each Unit shall be comprised of Notes having aggregate minimum denominations allocated
as follows: (i) U.S. Notes in minimum denominations of $437.50 and
integral multiples of $218.75 in excess thereof and (ii) Canadian Notes in
minimum denominations of $1,562.50 and integral multiples of $781.25 in excess
thereof.  Each Global Unit will represent
such of the outstanding Units (and the corresponding amount of Notes) as will
be specified therein and each shall represent the aggregate principal amount of
outstanding Units (and the corresponding amount of Notes) from time to time
endorsed thereon and the aggregate principal amount of outstanding Units (and the
corresponding amount of Notes) represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges and redemptions. Any
endorsement of a Global Unit to reflect the amount of any increase or decrease
in the aggregate principal amount of outstanding Units (and the corresponding
amount of Notes) represented thereby will be made by the Trustee or the
Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.06 hereof.


 


(c)           Temporary Global Units.
Units offered and sold in reliance on Regulation S will be issued initially in
the form of the Regulation S Temporary Global Unit, which will be deposited on
behalf of the purchasers of the Units represented thereby with the Trustee, at
its New York office, as custodian for the Depositary, and registered in the
name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Clearstream, duly executed
by the Issuers and authenticated by the Trustee as hereinafter provided.  The Restricted Period will be terminated upon
the receipt by the Trustee of:


 


(1)           a written
certificate from the Depositary, together with copies of certificates from Euroclear
and Clearstream certifying that they have received certification of non-United
States beneficial ownership of 100% of the aggregate principal amount of the
Regulation S Temporary Global Unit (except to the extent of any beneficial
owners thereof who acquired an interest therein during the Restricted Period
pursuant to another exemption from registration under the Securities Act and
who will take delivery of a beneficial ownership interest in a 144A Global Unit
or an IAI Global Unit bearing a Private Placement Legend, all as contemplated
by Section 2.06(b) hereof); and


 


(2)           an Officers’
Certificate from the Company.


 


26

















 


Following
the termination of the Restricted Period, beneficial interests in the
Regulation S Temporary Global Unit will be exchanged for beneficial interests
in the Regulation S Permanent Global Unit pursuant to the Applicable
Procedures.  Simultaneously with the
authentication of the Regulation S Permanent Global Unit, the Trustee will
cancel the Regulation S Temporary Global Unit. 
The aggregate principal amount of the Regulation S Temporary Global Unit
and the Regulation S Permanent Global Unit may from time to time be increased
or decreased by adjustments made on the records of the Trustee and the
Depositary or its nominee, as the case may be, in connection with transfers of
interest as hereinafter provided.


 


(d)           Euroclear
and Clearstream Procedures Applicable.  The provisions of the “Operating Procedures
of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear”
and the “General Terms and Conditions of Clearstream Banking” and “Customer
Handbook” of Clearstream will be applicable to transfers of beneficial interests
in the Regulation S Temporary Global Unit and the Regulation S Permanent Global
Unit that are held by Participants through Euroclear or Clearstream.


 


Section 2.02           Execution and
Authentication.


 


At least one Officer of each Issuer must sign the
Notes and the Units issued by such Issuer for such Issuer by manual or facsimile
signature.


 


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


 


No Unit or Note will be valid until authenticated by
the manual signature of authorized signatory of the Trustee. The signature will
be conclusive evidence that the Unit or Unit, as the case may be, has been
authenticated under this Indenture.


 


The Trustee will, upon receipt of a written order of
the Issuers signed by two Officers of each Issuer (an “Authentication
Order”), authenticate Units (and the Notes comprising such Units)
for original issue that may be validly issued under this Indenture, including
any Units (and the Notes comprising such Units) issued as Additional Units. The
aggregate principal amount of Units (and the corresponding amount of Notes)
outstanding at any time may not exceed the aggregate principal amount of Units
(and the corresponding 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 Units (and the Notes comprising such
Units). An authenticating agent may authenticate Units (and the Notes
comprising such Units) whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Issuers.


 


Section 2.03           Registrar and
Paying Agent.


 


The Issuers will maintain an office or agency where
Units 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
shall keep a register (the “Register”) of
the Units 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 Issuers
or any of their 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 Units.


 


27














 


The Issuers initially appoint the Trustee to act as
the Registrar and Paying Agent in connection with the Units, until such time as
the Trustee has resigned or a successor has been appointed pursuant to Section 7.07
hereof, and to act as Custodian with respect to the Global Units.


 


Section 2.04           Paying Agent to Hold Money in Trust.


 


On or prior to 10:00 a.m. New York City time on
each due date of the principal and interest on any Unit, the Issuers shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest on any Unit as it becomes due. The Issuers shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium on, if any, or interest,
if any, on the Units, and shall 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 an Issuer or a Subsidiary) shall have no further liability for the money.
If an Issuer or a Subsidiary acts as Paying Agent, it shall 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 an
Issuer, the Trustee shall serve as Paying Agent for the Units.


 


Section 2.05           Holder Lists.


 


The Trustee shall preserve in as current a form as
is reasonably practicable the most recent list available to it of the names and
addresses of all Holders. If the Trustee is not the Registrar, the Issuers
shall furnish to the Trustee or cause the Registrar to furnish to the Trustee,
at least five (5) 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 Units; provided that
as long as the Trustee is the Registrar, no such list need be furnished.


 


Section 2.06           Transfer and Exchange.


 


(a)           Transfer and
Exchange of Global Units. A Global Unit 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 Units shall be exchanged
by the Issuers for Definitive Units only in the following limited circumstances:


 


(1)           the Issuers deliver
to the Trustee notice from the Depositary that it is unwilling or unable to
continue to act as Depositary or that it is no longer a clearing agency
registered under the Exchange Act at a time when it is required to be so
registered in order to act as depository and, in each case, a successor
Depositary is not appointed by the Issuers within 120 days after the date of
such notice from the Depositary;


 


(2)           subject to the
procedures of the Depositary, the Issuers in their sole discretion jointly determine
that Global Units (in whole but not in part) should be exchanged for Definitive
Units and delivers a written notice to such effect to the Trustee; provided that in no event shall the Regulation S Temporary
Global Unit be exchanged by the Issuers for Definitive Units prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act; or


 


(3)           there has occurred
and is continuing a Default or Event of Default with respect to the Units.


 


Upon the occurrence of either of the preceding
events in (1), (2) or (3) above, Definitive Units shall be issued in
such names as the Depositary shall instruct the Trustee. Global Units 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 


 


28

















 


for, or in lieu of, a Global
Unit 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 Unit. A Global Unit may not be exchanged for another Unit other
than as provided in this Section 2.06(a), however, beneficial interests in
a Global Unit may be transferred and exchanged as provided in Section 2.06(b) or
(c) or (d) hereof.


 


(b)           Transfer and
Exchange of Beneficial Interests in the Global Units. The transfer
and exchange of beneficial interests in Global Units will be effected through
the Depositary, in accordance with the provisions of this Indenture and the
Applicable Procedures. None of the Issuers, the Trustee, Paying Agent, nor any
agent of the Issuers shall have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests in a Global Unit, or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interest. Beneficial interests in
the Restricted Global Units 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 Units 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 Unit. Beneficial interests
in any Restricted Global Unit may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Unit
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 Temporary Global Unit 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 Unit may be transferred to Persons who take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Unit. No written orders or
instructions shall be required to be delivered to the Registrar to effect the
transfers described in this Section 2.06(b)(1).


 


(2)           All Other
Transfers and Exchanges of Beneficial Interests in Global Units. 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 Unit in an amount equal to the beneficial interest to be transferred or
exchanged; and


 


(ii)           instructions
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 Unit 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 Unit shall be registered to effect the
transfer or exchange referred to in (1) above;


 


provided that in no
event shall Definitive Units be issued upon the transfer or exchange of
beneficial interests in the Regulation S Temporary Global Unit prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903 under the Securities Act


 


29

















 


Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Units contained in
this Indenture and the Units, the Trustee shall adjust the principal amount of
the relevant Global Units pursuant to Section 2.06(g) hereof.


 


(3)           Transfer of
Beneficial Interests to Another Restricted Global Unit. A beneficial
interest in any Restricted Global Unit may be transferred to a Person who takes
delivery thereof in the form of a beneficial interest in another Restricted
Global Unit 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 Unit,
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
Temporary Global Unit or the Regulation S Permanent Global Unit, 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 Unit, 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 Unit for Beneficial
Interests in an Unrestricted Global Unit.
A beneficial interest in any Restricted Global Unit may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Unit or
transferred to a Person who takes delivery thereof in the form of a beneficial
interest in an Unrestricted Global Unit if the exchange or transfer complies
with the requirements of Section 2.06(b)(2) above and the Registrar
receives the following:


 


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


 


(ii)           if
the holder of such beneficial interest in a Restricted Global Unit 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 Unit, 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 (4), if the applicable Issuer
so requests or if the Applicable Procedures so require, an Opinion of Counsel
in form reasonably acceptable to the such Issuer 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 (4) above at a time when an Unrestricted Global Unit 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 Units in an aggregate principal
amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (4) above.


 


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


 


30

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


the Trustee shall cause the aggregate
principal amount of the applicable Global Unit to be reduced accordingly pursuant
to Section 2.06(g) hereof, and the Issuers shall execute and the
Trustee shall authenticate and deliver to the Person designated in the
instructions a Definitive Unit in the appropriate principal amount. Any
Definitive Unit issued in exchange for a beneficial interest in a Restricted
Global Unit 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 Units to the Persons in whose names
such Units are so registered. Each Issuer shall promptly deliver to the Trustee
a supply of Definitive Units to enable the Registrar to deliver the Definitive
Units contemplated by this Section 2.06(c)(1). Any Definitive Unit issued
in exchange for a beneficial interest in a Restricted Global Unit 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
Regulation S Temporary Global Unit to Definitive Units.  Notwithstanding Sections 2.06(c)(1)(A) and
(C) hereof, a beneficial interest in the Regulation S Temporary Global
Unit may not be exchanged for a Definitive Unit or transferred to a Person who
takes delivery thereof in the form of a Definitive Unit prior to (A) the
expiration of the Restricted Period and (B) the receipt by the Registrar
of any certificates required pursuant to Rule 903(b)(3)(ii)(B) under
the Securities Act, except in the case of a transfer pursuant to an exemption
from the registration requirements of the Securities Act other than Rule 903
or Rule 904.


 


(3)           Beneficial Interests in Restricted
Global Units to Unrestricted Definitive Units. A holder of a
beneficial interest in a Restricted Global Unit may exchange such beneficial
interest for an Unrestricted Definitive 


 


31

















 


Unit or may transfer such beneficial interest
to a Person who takes delivery thereof in the form of an Unrestricted Definitive
Unit only if the Registrar receives the following:


 


(i)            if
the holder of such beneficial interest in a Restricted Global Unit proposes to
exchange such beneficial interest for an Unrestricted Definitive Unit, 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 Unit proposes to
transfer such beneficial interest to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Unit, 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 (2), if the applicable Issuer so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to the such
Issuer 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. Each Issuer shall promptly deliver to the Trustee
a supply of Definitive Units to enable the Registrar to deliver the Definitive
Units contemplated by this Section 2.06(c)(2).


 


(4)           Beneficial Interests in
Unrestricted Global Units to Unrestricted Definitive Units. If any
holder of a beneficial interest in an Unrestricted Global Unit proposes to
exchange such beneficial interest for a Definitive Unit or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a
Definitive Unit, then, upon satisfaction of the conditions set forth in Section 2.06(b)(2) hereof,
the Trustee will cause the amount of Units or the aggregate principal amount of
Notes, as the case may be, of the applicable Global Unit to be reduced
accordingly pursuant to Section 2.06(g) hereof, and the Company will
execute and the Trustee will authenticate and deliver to the Person designated
in the instructions a Definitive Unit in the appropriate principal amount. Any
Definitive Unit 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
Units to the Persons in whose names such Units are so registered. Any
Definitive Unit issued in exchange for a beneficial interest pursuant to this Section 2.06(c)(3) will
not bear the Private Placement Legend. Each Issuer shall promptly deliver to
the Trustee a supply of Definitive Units to enable the Registrar to deliver the
Definitive Units contemplated by this Section 2.06(c)(3).


 


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


 


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


 


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


 


(B)           if such Restricted Definitive Unit 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 Unit 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 Unit 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; or


 


32

















 


(E)           if such Restricted Definitive Unit 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, the
Trustee will cancel the Restricted Definitive Unit, increase or cause to be
increased the amount of or aggregate principal amount of (as the case may be),
in the case of clause (A) above, the appropriate Restricted Global Unit,
in the case of clause (B) above, the 144A Global Unit, in the case of
clause (C) above, the Regulation S Global Unit, and in the case of clauses
(D) and (E) above, the IAI Global Unit.


 


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


 


(i)            if
the Holder of such Definitive Units proposes to exchange such Unit for a
beneficial interest in the Unrestricted Global Unit, 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 Units proposes to transfer such Unit to a Person
who shall take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Unit, 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 (2), if the applicable Issuer so requests or if the Applicable Procedures
so require, an Opinion of Counsel in form reasonably acceptable to such Issuer
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), the Trustee will cancel the
Definitive Units and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Unit.


 


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


 


If any such exchange or transfer from a Definitive
Unit to a beneficial interest is effected pursuant to subparagraphs (2) or
(3) above at a time when an Unrestricted Global Unit 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 Units in the aggregate principal amount equal to the
principal amount of Definitive Units so transferred.


 


(e)           Transfer and
Exchange of Definitive Units for Definitive Units. Upon request by a
Holder of Definitive Units and such Holder’s compliance with the provisions of
this Section 2.06(e), the Registrar will register the transfer or exchange
of Definitive Units. Prior to such registration of transfer or exchange, the
requesting Holder must present or surrender to the Registrar the Definitive
Units duly endorsed or accompanied by a written instruction of transfer in 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 Units to Restricted Definitive Units. Any Restricted
Definitive Unit may be transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive Unit if the
Registrar receives the following:


 


33

















 


(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 Units to Unrestricted Definitive Units. Any Restricted
Definitive Unit may be exchanged by the Holder thereof for an Unrestricted
Definitive Unit or transferred to a Person or Persons who take delivery thereof
in the form of an Unrestricted Definitive Unit if the Registrar receives the
following:


 


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


 


(ii)           if
the Holder of such Restricted Definitive Units proposes to transfer such Units
to a Person who shall take delivery thereof in the form of an Unrestricted
Definitive Unit, 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 (2), if the applicable Issuer so requests, an
Opinion of Counsel in form reasonably acceptable to such Issuer, as the case
may be, 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 Units to Unrestricted Definitive Units.
A Holder of Unrestricted Definitive Units may transfer such Units to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Unit. Upon
receipt of a request to register such a transfer, the Registrar shall register
the Unrestricted Definitive Units pursuant to the instructions from the Holder
thereof.


 


(f)            Legends. The following legends will appear on the face of
the applicable Global Units and Definitive Units 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 Unit and each Definitive Unit (and all Units 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 


 


34

















 


DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A “QIB”), OR (B) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT;


 


(2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN EXCEPT (A) TO
THE ISSUERS, THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN
AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION
S OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER) OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND


 


(3) 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 “OFFSHORE
TRANSACTIONS” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902
OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE 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 Unit or
Definitive Unit issued pursuant to subparagraphs (b)(4), (c)(2), (c)(3),
(d)(2), (d)(3), (e)(2) or (e)(3) of this Section 2.06 (and all
Units issued in exchange therefor or substitution thereof) will not bear the
Private Placement Legend.


 


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


 


“THIS
GLOBAL UNIT IS HELD BY OR ON BEHALF OF THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS SECURITY) 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 UNIT MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (3) THIS GLOBAL UNIT MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (4) THIS
GLOBAL UNIT MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY OR ITS NOMINEE
WITH THE PRIOR WRITTEN CONSENT OF THE ISSUERS.


 


UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE
FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW 


 


35

















 


YORK)
(“DTC”), TO THE ISSUERS OR THEIR AGENTS 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.”


 


(3)          Regulation
S Temporary Global Unit Legend.  The Regulation S Temporary Global Unit will
bear a Legend in substantially the following form:


 


“THE RIGHTS ATTACHING TO
THIS REGULATION S TEMPORARY GLOBAL UNIT, AND THE CONDITIONS AND PROCEDURES
GOVERNING ITS EXCHANGE FOR CERTIFICATED UNITS, ARE AS SPECIFIED IN THE
INDENTURE (AS DEFINED HEREIN).  NEITHER
THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL UNIT
SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON.  THIS REGULATION S TEMPORARY GLOBAL UNIT SHALL
BECOME THE PERMANENT REGULATION S GLOBAL UNIT AFTER EXPIRATION OF THE
RESTRICTED PERIOD.”


 


(4)           Unit Legend.
The Units will bear the following legend (the “Unit Legend”)
on the face thereof:


 


“THE
NOTES EVIDENCED BY THIS CERTIFICATE ARE ISSUED AS PART OF AN ISSUANCE OF
UNITS, EACH OF WHICH CONSISTS OF $218.75 PRINCIPAL AMOUNT OF THE U.S. NOTES AND
$781.25 PRINCIPAL AMOUNT OF THE CANADIAN NOTES (TOGETHER, THE “NOTES”). THE
NOTES MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, AND MAY BE
TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE OTHER NOTES THAT ARE PART OF
THE UNIT.”


 


(g)           Cancellation
and/or Adjustment of Global Units. At such time as all beneficial
interests in a particular Global Unit have been exchanged for Definitive Units
or a particular Global Unit has been redeemed, repurchased or canceled in whole
and not in part, each such Global Unit 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 Unit is exchanged
for or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Unit or for Definitive Units, the amount
of Units or the principal amount of Notes represented by such Global Unit, as
the case may be, will be reduced accordingly and an endorsement will be made on
such Global Unit 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 Unit, such other Global Unit
will be increased accordingly and an endorsement will be made on such Global
Unit by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase. At any time prior to such cancellation, if any
beneficial interest in a Definitive Unit is exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial interest in a
Global Unit, the principal amount of Units (and the corresponding amount of
Notes) represented by such Global Unit, as the case may be, will be increased
accordingly and an endorsement will be made on such Global Unit by the Trustee
or by the Depositary at the direction of the Trustee to reflect such increase.


 


(h)           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 Units upon
receipt of an Authentication Order in accordance with Section 2.02 hereof
or at the Registrar’s request.


 


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(2)           No service charge will be made to a Holder of a beneficial
interest in a Global Unit or to a Holder of a Definitive Unit for any
registration of transfer or exchange, but the Issuers may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.07, 3.08, 4.10, 4.15 and 9.04 hereof).


 


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


 


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


 


(A)          to issue, to register the transfer of or to exchange any
Units during a period beginning at the opening of business fifteen (15) days
before the day of any selection of Units for redemption under Section 3.03
hereof and ending at the close of business on the day of selection;


 


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


 


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


 


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


 


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


 


(7)           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.


 


Neither the Trustee nor the Registrar shall have any
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 Participants, members or beneficial owners in any
Global Unit) 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.


 


The Trustee shall retain copies of all letters,
notices and other written communications received pursuant to this Section 2.06
(including all Units received for transfer pursuant to this Section 2.06).
The Issuers shall have the right to require the Trustee to deliver to the
Issuers, at their expense, copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Trustee.


 


In connection with any transfer of any Unit, the
Trustee and the Issuers shall be entitled to receive, shall be under no duty to
inquire into, may conclusively presume the correctness of, and shall be fully
protected in relying upon the certificates, opinions and other information
referred to herein (or in the forms provided herein, attached hereto or to the
Unit, or otherwise) received from any Holder and any transferee of any Unit
regarding the validity, legality and due authorization of any such transfer,
the eligibility of the transferee to receive such Unit and any other facts and
circumstances related to such transfer.


 


37














 


Section 2.07           Replacement Units.


 


If any mutilated Units are surrendered to the
Trustee or the Issuers or if the Holder of a Unit claims that the Unit has been
lost, destroyed or wrongfully taken, the applicable Issuer will issue and the
Trustee, upon receipt of an Authentication Order, will authenticate a
replacement Unit if the Holder satisfies any reasonable requirements of the
Trustee and the Issuers. If required by the Trustee or the Issuers, an
indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuers to protect the Issuers, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Unit is replaced. The Issuers and the Trustee may charge the
Holders for each of its expenses in replacing a Unit.


 


In case any such mutilated, destroyed, lost, or
stolen Unit has become or is about to become due and payable, the applicable
Issuer in its sole discretion may, instead of issuing a new Unit, pay such
Unit.


 


Upon the issuance of any new Unit under this Section 2.07,
the applicable Issuer may require the payment of a sum sufficient to cover any
tax, assessment, fee or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.


 


Every new Unit issued pursuant to this Section 2.07
in exchange for any mutilated Unit or in lieu of any destroyed, lost, or stolen
Unit will constitute an original additional contractual obligation of the
applicable Issuer, whether or not the mutilated, destroyed, lost, or stolen
Unit shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Units duly issued hereunder.


 


The provisions of this Section 2.07 are
exclusive and will preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed, lost, or
stolen Units.


 


Section 2.08           Outstanding Units.


 


The Units (and the Notes comprising such Units)
outstanding at any time are all the Units and 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 Unit 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 Unit
does not cease to be outstanding because the Issuers or an Affiliate of the Issuers
holds the Unit; however, Units held by the Company or a Subsidiary of the
Company shall not be deemed to be outstanding for purposes of Section 3.01(a) hereof.


 


If a Unit is replaced pursuant to Section 2.07
hereof, it ceases to be outstanding unless the Trustee and the Issuers receive
proof satisfactory to them that the replaced Unit is held by a protected
purchaser. A mutilated Unit ceases to be outstanding upon surrender of such
Unit and replacement thereof pursuant to Section 2.07 hereof. If the principal
amount of any Unit (or the corresponding amount of any Note comprising such
Unit) 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 an Issuer, a
Subsidiary or an Affiliate of any thereof) holds, on a redemption date or
maturity date, money sufficient to pay Units payable on that date, then on and
after that date such Units will be deemed to be no longer outstanding and will
cease to accrue interest.


 


Section 2.09           Treasury Units.


 


In determining whether the Holders of the required
principal amount of Units have concurred in any direction, waiver or consent,
Units 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 an Issuer 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
Units that a Responsible Officer of the Trustee actually knows are so owned
will be so disregarded.


 


38

















 


Section 2.10           Temporary Units.


 


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


 


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


 


Section 2.11           Cancellation.


 


The Issuers at any time may deliver Units to the
Trustee for cancellation. The Registrar and Paying Agent shall forward to the
Trustee any Units surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Units surrendered for
registration of transfer, exchange, payment, replacement or cancellation. The
Trustee shall dispose of all cancelled Units in accordance with its customary
procedures and shall deliver a certificate of disposition to the applicable
Issuer upon written request therefor. Subject to Section 2.07 hereof, the
Issuers may not issue new Units to replace Units that have been paid or that
have been delivered to the Trustee for cancellation.


 


Section 2.12           Defaulted Interest.


 


If an Issuer defaults in a payment of interest on
the Units, 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 Unit 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
ten (10) days prior to the related payment date for such defaulted
interest. At least fifteen (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.


 


Section 2.13           Issuance of Additional Units.


 


The Issuers shall be entitled, from time to time,
subject to its compliance with Section 4.09 and Section 4.12 hereof,
without consent of the Holders, to issue Additional Units under this Indenture
with identical terms as the Notes other than with respect to (i) the date
of issuance, (ii) the issue price, (iii) the amount of interest
payable on the first interest payment date, initial interest accrual date and
initial interest payment date and (iv) any adjustments in order to conform
to and ensure compliance with the Securities Act (or other applicable
securities laws). The Initial Units and any Notes issued as Additional Units
shall be treated as a single class for all purposes under this Indenture.


 


With respect to any Additional Units, the Issuers
shall set forth in an Officers’ Certificate pursuant to a resolution of the
Board of Directors of each of the Issuers, copies of which shall be delivered
to the Trustee, the following information:


 


(1)           The
aggregate principal amount of Units and the aggregate principal amount of Notes
constituting Additional Units to be authenticated and delivered pursuant to
this Indenture; and


 


(2)           the
issue price, the issue date and the CUSIP number of such Additional Units.


 


39

















 


ARTICLE 3

REDEMPTION AND PREPAYMENT


 


Section 3.01           Redemption.


 


(a)           Optional
Redemption Upon an Equity Offering. At any time prior to March 15,
2013, the Issuers may, at their joint option, on any one or more occasions
redeem up to 35% of the aggregate principal amount of their respective Notes
issued under this Indenture as Units, upon not less than thirty (30) nor more
than sixty (60) days’ notice, at a redemption price equal to 108.875% of the
principal amount of the Notes redeemed, plus accrued and unpaid interest, if
any, to the date of redemption (subject to the rights of Holders of Notes on
the relevant record date to receive interest on the relevant interest payment
date) with the net cash proceeds of one or more Equity Offerings; provided that:


 


(1)           at least 65% of the
aggregate principal amount of Notes originally issued under this Indenture
(excluding Notes held by the Company and its Subsidiaries) remains outstanding
immediately after the occurrence of such redemption; and


 


(2)           the redemption
occurs within ninety (90) days of the date of the closing of such Equity
Offering.


 


(b)           Optional
Redemption Prior to March 15, 2014. At any time prior to March 15,
2014, the Issuers may, at their joint option, on any one or more occasions
redeem all or a part of the Notes as Units, upon not less than thirty (30) nor
more than sixty (60) days’ notice, at a redemption price equal to 100% of the
principal amount of the Notes redeemed, plus the Applicable Premium as of, and
accrued and unpaid interest, if any, to the date of redemption, subject to the
rights of Holders on the relevant record date to receive interest due on the
relevant interest payment date.


 


(c)           Optional
Redemption On or After March 15, 2014.


 


On or after March 15, 2014, the Issuers may, at
their joint option, on any one or more occasions redeem all or a part of the
Notes as Units, upon not less than ten (10) nor more than sixty (60) days’
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest, if any, on the Notes
redeemed, to the applicable date of redemption, if redeemed during the
twelve-month period beginning on March 15 of the years indicated below,
subject to the rights of Holders on the relevant record date to receive
interest on the relevant interest payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.438

  	
  %

  
	
  2015

  	
   

  	
  102.219

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Unless an Issuer defaults 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.


 


(d)           Redemption
for Changes in Withholding Taxes. If, as a result of:


 


(a)           any
amendment to, or change in, the laws (or regulations or rulings promulgated
thereunder) of any Relevant Taxing Jurisdiction which is announced and becomes
effective after the
date hereof (or, where a jurisdiction in question does not become a Relevant
Taxing Jurisdiction until a later date, such later date); or


 


(b)           any
amendment to, or change in, the official application, official interpretation,
official administration or official assessing practices of the laws,
regulations or rulings of any Relevant Taxing Jurisdiction which is announced
and becomes effective after the date hereof (or, where a jurisdiction in question
does not become a Relevant Taxing Jurisdiction until a later date, such later
date),


 


40

















 


an
Issuer would be obligated to pay, on the next date for any payment and as a
result of that amendment or change, Additional Amounts or indemnification
payments as described in Section 4.19 hereof with respect to the Relevant
Taxing Jurisdiction, then the Issuers may redeem all, but not less than all, of
the Units, at any time thereafter, upon not less than thirty (30)  nor more than sixty (60) days’ notice, at a
redemption price of 100% of their principal amount, plus accrued and unpaid
interest, if any, to the redemption date. 
Prior to the giving of any notice of redemption described in this Section 3.01(d),
an Issuer will deliver
to the Trustee:


 


(i) an Officers’
Certificate stating that the Issuer in its reasonable judgment has determined
that  the obligation to pay the Additional Amounts
or indemnification payments cannot be avoided by such Issuer’s taking
reasonable measures available to it; and


 


(ii) a written
opinion of independent legal counsel to such Issuer of recognized standing to
the effect that such Issuer has or will become obligated to pay such Additional
Amounts or indemnification payments as a result of a change, amendment,
official application, official interpretation, official administration or
official assessing practices described above.


 


(e)           Mandatory
Redemption. The Issuers are not required to make mandatory
redemption or sinking fund payments with respect to the Notes.


 


(f)            Any redemption
pursuant to this Section 3.01 shall include the U.S. Notes and the
Canadian Notes on a pro rata basis and be made pursuant to the provisions of
Sections 3.02 through 3.07 hereof.


 


Section 3.02           Notices to Trustee.


 


If the Issuers jointly elect to redeem Notes as
Units pursuant to Section 3.01 hereof, they shall notify the Trustee in
writing of the redemption date, the principal amount of Notes to be redeemed,
the redemption price and the paragraph of the Notes pursuant to which the
redemption will occur. The Issuers shall give such notice to the Trustee at
least five (5) days before notice of redemption is required to be mailed
or caused to be mailed to Holders pursuant to Section 3.01 hereof unless
the Trustee consents to a shorter period. Such notice shall be accompanied by
an Officers’ Certificate from the Issuers to the effect that such redemption
will comply with the provisions herein. Such Officers’ Certificate shall also
state that all conditions precedent, if any, provided for herein to such redemption
have been complied with.


 


Section 3.03           Selection of Notes as
Units to Be Redeemed or Purchased.


 


If less than all of the Notes are to be redeemed or
repurchased in an offer to purchase at any time, the Trustee will select Notes
for redemption or purchase as Units on a pro rata basis (provided that,
in the case of Notes issued in global form pursuant to Article 2 hereof,
the Depositary may select interests in the Notes for redemption or purchase
pursuant to its applicable procedures) unless otherwise required by law or
applicable stock exchange or depositary requirements. The Trustee shall make
the selection from outstanding Notes not previously called for redemption or
purchase. Units consisting of Notes having an aggregate principal amount in excess
of $2,000 may be redeemed or purchased in part but only in whole multiples of
$1,000, except that if all of the Units or Notes of a Holder are to be redeemed
or purchased, the entire outstanding amount of Notes or Units held by such
Holder shall be redeemed or purchased. In connection with any pro rata
selection of Notes for purchase or redemption, the Trustee may make such
adjustments downward or upward (by not more than $1,000) so that Notes shall
only be redeemed or purchased in authorized denominations.


 


If any Note as a Unit is to be redeemed or purchased
in part only, the notice relating to such Note as a Unit shall state the
portion of the principal amount thereof to be redeemed or purchased. A new Unit
(and corresponding Notes) in principal amount equal to the unredeemed portion
thereof will be issued in the name of the Holder thereof upon cancellation of
the original Units (and corresponding Notes). Provisions of this Indenture that
apply to Notes as Units called for redemption or purchase also apply to
portions of Notes as Units called for redemption or purchase. The Trustee shall
notify the Issuers promptly of the Notes as Units or portions of Notes as Units
to be redeemed or purchased.


 


41

















 


Section 3.04           Notice of Redemption.


 


At least thirty (30) days, or at least ten (10) days
in the case of any redemption pursuant to Section 3.01(c) hereof, but
not more than sixty (60) days before a redemption date, the Issuers will mail
or cause to be mailed, by first class mail or, in the case of Notes held as
Units in book-entry form, by electronic transmission in accordance with the
customary practices of the Depositary, 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 sixty (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 Articles 8 or 11 hereof.


 


The notice will identify the Notes as Units to be
redeemed and shall state:


 


(1)           the
redemption date;


 


(2)           the
redemption price (or if not then ascertainable, the manner of calculation
thereof);


 


(3)           if
any Note as a Unit is being redeemed in part, the portion of the principal
amount of such Note as a Unit to be redeemed and that, after the redemption
date upon surrender of such Unit (and corresponding Notes), a new Unit or Units
(and corresponding Notes) in principal amount equal to the unredeemed portion
will be issued upon cancellation of the original Unit (and corresponding Note);


 


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


 


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


 


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


 


(7)           the
paragraphs of the Notes and/or Section of this Indenture pursuant to which
the Notes as Units called for redemption are being redeemed;


 


(8)           the
CUSIP number, if any, printed on the Units being redeemed; and


 


(9)           that
no representation is made as to the correctness or accuracy of the CUSIP numbers,
if any, listed in such notice or printed on the Units being redeemed.


 


At the Issuers’ request, the Trustee shall give the
notice of redemption in the Issuers’ names and at their expense; provided, however, that
such request by the Issuers to the Trustee is received by the Trustee at least
five (5) Business Days prior to the date the Trustee is requested to give
notice to the Holders whose Notes as Units are to be redeemed. In such event,
the Issuers shall provide the Trustee with the information required by this Section 3.04.


 


Section 3.05           Effect of Notice of
Redemption.


 


Once notice of redemption is mailed in accordance
with Section 3.04 hereof, Notes as Units called for redemption become
irrevocably due and payable on the redemption date at the redemption price
stated in the notice. A notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Notes shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date. Such notice
if mailed in the manner herein provided shall be conclusively presumed to have
been given, whether or not the Holder receives such notice. Failure to give
notice or any defect in the notice to any Holder shall not affect the validity
of the notice to any other Holder.


 


42

















 


Section 3.06           Deposit of Redemption or
Purchase Price.


 


Prior to 10:00 a.m. (New York City time) on the
redemption date or Purchase Date, the Issuers shall deposit with the Trustee or
Paying Agent (or, if the Issuers or a Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption or purchase
price of and accrued interest (if any) on all Units (and corresponding Notes)
or portions thereof to be redeemed or purchased on that date. The Trustee or
the Paying Agent shall 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, if
any, on all Units (and corresponding Notes) to be redeemed or purchased.


 


If the Issuers comply with the provisions of the
preceding paragraph, on and after the redemption or Purchase Date, interest
will cease to accrue on the Units (and corresponding Notes) or the portions of
thereof called for redemption or purchase. If a Unit (and corresponding Notes)
are 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 Unit was registered at the close
of business on such record date. If any Unit (and corresponding Notes) called
for redemption or purchase are 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 corresponding Notes and in Section 4.01 hereof.


 


Section 3.07           Notes Redeemed or
Purchased in Part.


 


Upon surrender of a Unit (and corresponding Notes)
that are redeemed or purchased in part (with, if the Issuers or the Trustee so
require, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuers and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), the Issuers shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Units (and
corresponding Notes) without service charge, a new Unit or Units (and
corresponding Notes) of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Unit (and corresponding Notes) so surrendered,
except that if a Global Unit is so surrendered, the Issuers shall execute, and
the Trustee shall authenticate and deliver to the Depository for such Global
Unit, without service charge, a new Global Unit in denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Unit so
surrendered.


 


Section 3.08           Offer to Purchase by
Application of Excess Proceeds.


 


In the event that, pursuant to Section 4.10
hereof, the Issuers are required to commence a joint offer to all Holders to
purchase Notes as Units (an “Asset Sale Offer”),
they will follow the procedures specified below.


 


The Asset Sale Offer shall be made to all Holders.
The Asset Sale Offer will remain open for a period of at least twenty (20)
Business Days following its commencement and not more than thirty (30) Business
Days, except to the extent that a longer period is required by applicable law
(the “Offer Period”). No later than five (5) Business
Days after the termination of the Offer Period (the “Purchase
Date”), the Issuers will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes as Units or, if less
than the Offer Amount has been tendered, all Notes as Units and other Indebtedness
tendered in response to the Asset Sale Offer.


 


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, if any, will be paid to the Person in whose name a Unit is
registered at the close of business on such record date, and no additional
interest will be payable to Holders who tender Notes as Units pursuant to the Asset
Sale Offer.


 


Upon the commencement of an Asset Sale Offer, the
Issuers will send, by first class mail, a notice to the Trustee and each of the
Holders, with a copy to the Trustee. The notice will contain all instructions
and materials necessary to enable such Holders to tender Notes pursuant to the
Asset Sale Offer. The notice, which will govern the terms of the Asset Sale
Offer, will state:


 


43

















 


(1)           that
the Asset Sale Offer is being made pursuant to this Section 3.08 and Section 4.10
hereof and the length of time the Asset Sale Offer will remain open;


 


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


 


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


 


(4)           that,
unless the Issuers default in making such payment, any Unit (and corresponding
Notes) accepted for payment pursuant to the Asset Sale Offer will cease to
accrue interest after the Purchase Date;


 


(5)           that
Holders electing to have a Note as a Unit purchased pursuant to an Asset Sale
Offer may elect to have Notes as Units purchased in denominations of $2,000 or
an integral multiple of $1,000 in excess thereof;


 


(6)           that
Holders electing to have Notes as a Unit purchased pursuant to any Asset Sale
Offer will be required to surrender the Notes as Units, with the form entitled “Option
of Holder to Elect Purchase” attached to the Units completed, or transfer a
beneficial interest in the Notes as Units by book-entry transfer, to the
Issuers, a depositary, if appointed by the Issuers, or a Paying Agent at the
address specified in the notice at least three (3) days before the
Purchase Date;


 


(7)           that
Holders will be entitled to withdraw their election if the Issuers, the
depositary or the Paying Agent, as the case may be, receives, not later than
the expiration of the Offer Period, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Unit (and corresponding Notes) the Holder delivered for purchase , the serial
number of such Unit if held in definitive form, and a statement that such
Holder is withdrawing his election to have such Notes as Units purchased;


 


(8)           that,
if the aggregate principal amount of Units (and corresponding Notes)
surrendered by holders thereof exceeds the Offer Amount, the Company will
select the Unit (and corresponding Notes) to be purchased on a pro rata basis
based on the principal amount of Units (and corresponding Notes); and


 


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


 


On or before the Purchase Date, the Issuers will, to
the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes as Units or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes as Units tendered, and will deliver or cause to be
delivered to the Trustee the Units (and corresponding Notes) properly accepted
together with an Officers’ Certificate of the applicable Issuer stating that
such Units (and corresponding Notes) or portions thereof were accepted for
payment by the Issuers in accordance with the terms of this Section 3.08.
The Issuers, the Depositary or the Paying Agent, as the case may be, will
promptly (but in any case not later than five (5) Business Days after the
Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes as Units tendered by such Holder and accepted by
the Issuers for purchase. Upon surrender of a Unit (and corresponding Notes)
that are purchased in part, the Issuers shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Unit (and corresponding Notes)
without service charge, a new Unit or Units (and corresponding Notes) of any authorized
denomination as requested by such Holder, in aggregate principal amount equal
to and in exchange for the unpurchased portion of the principal of the Notes as
Units so surrendered, except that if a Global Unit is so surrendered, the
Issuers shall execute, and the Trustee shall authenticate and deliver to the
Depository for such Global Unit, without service charge, a new Global Unit in
denomination equal to and in exchange for the unpurchased portion of the
principal of the Global Unit so surrendered. Any Units (and corresponding
Notes) not so accepted shall be promptly mailed or delivered by the Issuers to
the Holder thereof. The Issuers will announce the results of the Asset Sale
Offer to the Holders on the Purchase Date.


 


44

















 


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 3.03, 3.06 and 3.07 hereof.


 


ARTICLE 4

COVENANTS


 


Section 4.01           Payment of Notes.


 


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


 


The Issuers will pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at a rate that is 1% higher than the then applicable interest rate on
the Notes to the extent lawful; they will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest, if any (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 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 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.


 


The Issuers hereby designate the Corporate Trust
Office of the Trustee as one such office or agency of the Issuers in accordance
with Section 2.03 hereof.


 


Section 4.03           Reports.


 


(a)           So long as any Notes
are outstanding, the Company shall furnish to the Trustee:


 


(1)           within ninety (90)
days after the end of each fiscal year, annual reports of the Company
containing substantially all of the information that would have been required
to be contained in an Annual Report on Form 10-K under the Exchange
Act if the Company had been a reporting company under the Exchange Act (but
only to the extent similar information is included in the Offering Memorandum,
including (A) “Management’s Discussion and Analysis of Financial Condition
and Results of Operations,” (B) audited financial statements prepared in
accordance with GAAP and (C) a presentation of Adjusted EBITDA of the
Company (as described in the Offering Memorandum under the caption “Summary—Non-GAAP
Financial Measure”) consistent with the presentation thereof in the Offering
Memorandum and derived from such financial statements;


 


(2)           within forty-five
(45) days after the end of each of the first three fiscal quarters of each
fiscal year, quarterly reports of the Company containing substantially all of
the information that would have 


 


45

















 


been
required to be contained in a Quarterly Report on Form 10-Q under
the Exchange Act if the Company had been a reporting company under the Exchange
Act (but only to the extent similar information is included in the Offering
Memorandum, including (A) “Management’s Discussion and Analysis of
Financial Condition and Results of Operations,” (B) unaudited quarterly
financial statements prepared in accordance with GAAP and reviewed pursuant to
Statement on Auditing Standards No. 100 (or any successor provision) and (C) a
presentation of Adjusted EBITDA of the Company (as described in the Offering
Memorandum under the caption “Summary—Non-GAAP Financial Measure”) consistent
with the presentation thereof in the Offering Memorandum and derived from such
financial statements; and


 


(3)           within ten (10) Business
Days after the occurrence of each event that would have been required to be
reported in a Current Report on Form 8-K under the Exchange Act if
the Company had been a reporting company under the Exchange Act, current
reports containing substantially all of the information that would have been
required to be contained in a Current Report on Form 8-K under the
Exchange Act if the Company had been a reporting company under the Exchange
Act; provided, however,
that no such current report will be required to be furnished if the Company
determines in its good faith judgment that such event is not material to
Holders or the business, assets, operations, financial positions or prospects
of the Company and its Restricted Subsidiaries, taken as a whole.


 


Notwithstanding the foregoing, such reports (A) will
not be required to comply with Section 302 or Section 404 of the
Sarbanes-Oxley Act of 2002, or related Items 307 and 308 of Regulation S-K
promulgated by the SEC, or Item 10(e) of Regulation S-K (with respect to
any non-GAAP financial measures contained therein) and (B) will not be
required to contain the separate financial information for Guarantors or
Subsidiaries whose securities are pledged to secure the Notes contemplated by Rule 3-10
or Rule 3-16 of Regulation S-X promulgated by the SEC; provided, however,
the Company shall not be required to comply with Rule 3-05 of Regulation
S-X if the Company determines in its good faith judgment that such event giving
rise to the application of Rule 3-05 is not material to the Holders or the
business, assets, operations or financial positions of the Company and its Restricted
Subsidiaries, taken as a whole.  The
availability of any of the foregoing reports (or equivalent information in a
registration statement on Form S-1 or other form or report) on the SEC’s
EDGAR filing system (or other successor electronic filing system) shall be deemed
to satisfy the Company’s delivery obligations with respect thereto.


 


(b)           At any time that any
of the Company’s Subsidiaries are Unrestricted Subsidiaries, then the quarterly
and annual reports required by paragraph (a) of this Section 4.03
will include (or the Company will separately furnish to the Trustee) a
reasonably detailed presentation of the financial condition and results of operations
of the Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company.


 


(c)           So long as any Notes
are outstanding, (1) within ten (10) Business Days after furnishing
to the Trustee annual reports required by paragraph (a)(1) of this Section 4.03
(or within ten (10) Business Days after such reports becoming available on
the SEC’s EDGAR filing system (or other successor electronic filing system)),
hold a conference call to discuss such reports and the results of operations
for the relevant reporting period and (2) if reports required by
paragraphs (a)(1), (a)(2) and (a)(3) of this Section 4.03 are
not available on the SEC’s EDGAR filing system (or other successor electronic
filing system), the Company will also maintain a password protected website via an Intralinks site
or other similar password protected website to which Holders and prospective purchasers
of Notes are given access upon request to the Company and to which all of the
reports required by this Section 4.03 are posted.


 


(d)           In addition, the
Company shall furnish to Holders and prospective purchasers of Notes designated
by Holders, upon their request, any information required to be delivered
pursuant to Rule 144A(d)(4) under the Securities Act so long as the
Notes are not freely transferable under the Securities Act.


 


(e)           Notwithstanding
anything herein to the contrary, for purposes of Section 6.01(4) hereof,
(1) the Company will be deemed not to have failed to comply with any of
its obligations under paragraph (a)(1) of this Section 4.03 until
fifteen (15) days after the date any financial statements or reports thereunder
are due, and (2) the Company will be deemed not to have failed to comply
with any of its obligations under paragraph (a)(2) of this Section 4.03
until five (5) days after the date any financial statements or reports
thereunder are due.


 


46

















 


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 Officers’ Certificates).


 


Section 4.04           Compliance Certificate.


 


(a)           Each Issuer shall
deliver to the Trustee, within ninety (90) days after the end of each fiscal
year, beginning with the fiscal year ending December 31, 2010, an Officers’
Certificate stating that a review of the activities of each Issuer during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether each Issuer 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 each Issuer 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 Issuer 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
premium or interest, if any, on the Notes is prohibited or if such event has
occurred, a description of the event and what action the Issuer is taking or
proposes to take with respect thereto.


 


(b)           So long as not
contrary to the then current recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements delivered pursuant to Section 4.03
hereof shall be accompanied by a written statement of the independent public
accountants (who shall be a firm of established national reputation) that in making
the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that an
Issuer has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.


 


(c)           So long as any of
the Notes are outstanding, an Issuer will deliver to the Trustee, as promptly
as practicable upon any Officer of such Issuer becoming aware of any Default or
Event of Default with respect to such Issuer’s Notes, an Officers’ Certificate
specifying such Default or Event of Default and what action the Issuer is
taking or proposes to take with respect thereto.


 


Section 4.05           Taxes and Tax Treatment of
Units.


 


(a)           The Company shall
pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all
material taxes, assessments, and governmental levies except any such taxes that
are being 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.


 


(b)           Each Issuer, and by
its acceptance of the Units and/or the Notes, each Holder, hereby agrees (i) to
treat the Units as separate indebtedness of the U.S. Issuers and the Canadian
Issuers for U.S. and Canadian federal income tax purposes, (ii) to treat
the acquisition of a Unit as the acquisition of a U.S. Note and Canadian Note
which are represented by the Unit and to allocate the purchase price of the
Unit between the U.S. Note and Canadian Note in the proportions 21.875% and
78.125%, respectively and (iii) that the Company and each Holder will not
take any position on a tax return inconsistent with (i) and (ii), unless
required by applicable law.


 


Section 4.06           Stay, Extension and Usury
Laws.


 


Each of the Issuers and each of the Guarantors
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and each of the Issuers and each of the Guarantors (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by


 


47














 


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           Restricted Payments.


 


(a)           General.  The Company shall not, and shall not
permit any of its Restricted Subsidiaries to, directly or indirectly:


 


(1)           declare
or pay any dividend or make any other payment or distribution on account of
such Company’s or any of its Restricted Subsidiaries’ Equity Interests
(including, without limitation, any such payment in connection with any merger
or consolidation involving such Company or any of its Restricted Subsidiaries)
or to the direct or indirect holders of such Company’s or any of its Restricted
Subsidiaries’ Equity Interests in their capacity as such (other than dividends
or distributions payable in Equity Interests (other than Disqualified Stock) of
such Company or payable to such Company or a Restricted Subsidiary of the
Company);


 


(2)           purchase,
redeem or otherwise acquire or retire for value (including, without limitation,
in connection with any merger or consolidation involving such Company) any
Equity Interests of such Company or any direct or indirect parent of such
Company;


 


(3)           make
any principal payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value any Indebtedness that is contractually subordinated
to the Notes or the Note Guarantees (excluding any intercompany Indebtedness
between or among the Company and any of its Restricted Subsidiaries), in each
case prior to any scheduled sinking fund payment, principal installment or
Stated Maturity thereof (other than (x) Indebtedness permitted under
clauses (6) and (12) of the definition of “Permitted Debt” or (y) the
purchase, repurchase or other acquisition or retirement of Indebtedness purchased
in anticipation of satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the date of the
purchase, repurchase, acquisition or retirement); or


 


(4)           make
any Restricted Investment


 


(all such payments and other actions set
forth in these clauses (1) through (4) of this Section 4.07(a) being
collectively referred to as “Restricted Payments”)
unless, at the time of and after giving effect to such Restricted Payment:


 


(1)           no
Default (except a Reporting Default) or Event of Default has occurred and is
continuing or would occur as a consequence of such Restricted Payment;


 


(2)           the
Company would, at the time of such Restricted Payment and after giving pro
forma effect thereto as if such Restricted Payment had been made at the
beginning of the applicable four-quarter period, have been permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof; and


 


(3)           such
Restricted Payment, together with the aggregate amount of all other Restricted
Payments made by the Company and its Restricted Subsidiaries after the date of
this Indenture (excluding Restricted Payments permitted by clauses (2), (3), (4) (to
the extent, in the case of clause (4), payments are made to the Company or a
Restricted Subsidiary), (5), (6), (7), (11) and (12) of Section 4.07(c) hereof),
is less than the sum, without duplication, of:


 


(a)           50%
of the Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter commencing January 1,
2010 to the end of the Company’s most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit, less
100% of such deficit), plus


 


48

















 


(b)           100%
of the aggregate net cash proceeds and the Fair Market Value of property,
assets or marketable securities received by the Company (including the Fair
Market Value of any Permitted Business or long-term assets that are used or
useful in a Permitted Business to the extent acquired in consideration of
Equity Interests of the Company (other than Disqualified Stock) since the date
of this Indenture as a contribution to its common equity capital or from the
issue or sale of Equity Interests of the Company (other than Disqualified
Stock) or from the issue or sale of convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt securities of the Company that have
been converted into or exchanged for such Equity Interests (in each case other
than Equity Interests (or Disqualified Stock or debt securities sold to a
Restricted Subsidiary of the Company), plus


 


(c)           to
the extent that any Restricted Investment that was made after the date of this
Indenture is sold for cash or otherwise liquidated or repaid for cash, the
lesser of (i) the cash return of capital with respect to such Restricted
Investment (less the cost of disposition, if any) and (ii) the initial amount of such
Restricted Investment, plus


 


(d)           to
the extent that any Unrestricted Subsidiary of the Company is redesignated as a
Restricted Subsidiary after the date of this Indenture, the lesser of (i) the
Fair Market Value of such Company’s Investment in such Subsidiary as of the
date of such redesignation or (ii) such Fair Market Value as of the date
on which such Subsidiary was originally designated as an Unrestricted
Subsidiary.


 


(b)           After a Qualified MLP IPO.  Upon the completion of a Qualified MLP IPO (the date
of such completion, the “IPO Date”), the
Company and its Restricted Subsidiaries will no longer be subject to the
foregoing Section 4.07(a) and the Company and its Restricted
Subsidiaries will be subject to this Section 4.07(b) from and after
the IPO Date.  The Company will not, and
will not permit any of its Restricted Subsidiaries to, directly or indirectly,
make any Restricted Payment unless, at the time of and after giving effect to
such Restricted Payment, no Default (except a Reporting Default) or Event of
Default has occurred and is continuing or would occur as a consequence of such
Restricted Payment and either:


 


(1)           if
the Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which internal financial statements are available at the
time of such Restricted Payment is not less than 1.75 to 1.0, such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries (excluding Restricted
Payments permitted by clauses (2), (3), (4) (to the extent, in the case of
clause (4), payments are made to the Company or a Restricted Subsidiary), (5),
(6), (7) and (11) (to the extent, in the case of clause (11), not comprised
of Cash or Cash Equivalents) of Section 4.07(c) hereof) from the date
of the completion of a Qualified MLP IPO, is less than the sum, without duplication,
of:


 


(a)           Operating
Surplus calculated as of the end of the Company’s preceding fiscal quarter,
plus


 


(b)           to
the extent not included in the calculation of Operating Surplus calculated as
of the end of the Company’s preceding fiscal quarter, 100% of the aggregate net
cash proceeds received by the Company (including the Fair Market Value of any
Permitted Business or long-term assets that are used or useful in a Permitted
Business to the extent acquired in consideration of Equity Interests of the
Company (other than Disqualified Stock)) after the date of this Indenture as a
contribution to its common equity capital or from the issue or sale of Equity
Interests of the Company (other than Disqualified Stock) or from the issue or
sale of convertible or exchangeable Disqualified Stock or convertible or
exchangeable debt securities of the Companies that have been converted into or
exchanged for such Equity Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold to a Restricted Subsidiary of the
Company), plus


 


(c)           to
the extent not included in the calculation of Operating Surplus calculated as
of the end of the Company’s preceding fiscal quarter, to the extent that any
Restricted Investment that was made after the date of this Indenture is sold
for cash or Cash Equivalents or otherwise 


 


49

















 


liquidated or repaid for cash, the lesser of (i) the
cash return of capital with respect to such Restricted Investment (less the
cost of disposition, if any) and (ii) the initial amount of such Restricted
Investment, plus


 


(d)           to
the extent not included in the calculation of Operating Surplus calculated as
of the end of the Company’s preceding fiscal quarter, the net reduction in
Restricted Investments resulting from dividends, repayments of loans or
advances, or other transfers of assets in each case to the Company or any of
its Restricted Subsidiaries from any Person (including, without limitation,
Unrestricted Subsidiaries) or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries, to the extent such amounts have not been included
in Operating Surplus for any period commencing on or after the date of this
Indenture (items (b), (c) and (d) being referred to as “Incremental Funds”), minus


 


(e)           the
aggregate amount of Incremental Funds previously expended pursuant to Section 4.07(a),
this clause (1) and clause (2) below; or


 


(2)           if
the Fixed Charge Coverage Ratio for the Company’s most recently ended four full
fiscal quarters for which internal financial statements are available at the
time of such Restricted Payment is less than 1.75 to 1.00, such Restricted
Payment, together with the aggregate amount of all other Restricted Payments
made by the Company and its Restricted Subsidiaries (excluding Restricted Payments
permitted by clauses (2), (3), (4) (to the extent, in the case of clause
(4), payments are made to the Company or a Restricted Subsidiary), (5), (6), (7) and
(11) (to the extent, in the case of clause (11), not comprised of Cash or Cash
Equivalents) of Section 4.07(c) hereof) from the date of completion
of a Qualified MLP IPO (such Restricted Payments for purposes of this clause (2) meaning
only distributions in respect of the MLP’s Capital Stock), is less than the
sum, without duplication, of:


 


(a)           $75.0
million less the aggregate amount of all Restricted Payments made by the
Company and its Restricted Subsidiaries pursuant to this clause (2)(a) during
the period ending on the last day of the fiscal quarter immediately preceding the date of such
Restricted Payment and beginning on the date of this Indenture, plus


 


(b)           Incremental
Funds to the extent not previously expended pursuant to this clause (2) or
clause (1) above.


 


(c)           Permitted Payments. 
The
preceding provisions of Sections 4.07(a) and 4.07(b) will not prohibit:


 


(1)           the
payment of any dividend or distribution or the consummation of any irrevocable
redemption within sixty (60) days after the date of its declaration or giving
of the redemption notice, as the case may be, if at the date of declaration or
notice, the dividend, distribution or redemption payment would have complied
with the provisions of this Indenture;


 


(2)           the
making of any Restricted Payment out of the net cash proceeds of a
substantially concurrent (a) capital contribution (other than from a
Restricted Subsidiary of the Company) to the equity capital of the Company or (b) sale
(other than to a Restricted Subsidiary of the Company) of, Equity Interests of
the Company (other than Disqualified Stock), with a sale being deemed
substantially concurrent if such Restricted Payment occurs not more than 120
days after such sale; provided, however, that the amount of any such net
cash proceeds that are utilized for any such Restricted Payment will, to the
extent included therein, be excluded or deducted from (i) clause (3)(b) of
the final paragraph of Section 4.07(a) hereof or (ii) the
calculation of Operating Surplus and Incremental Funds, as applicable;


 


(3)           the
defeasance, redemption, repurchase, retirement or other acquisition of
subordinated Indebtedness of the Company, an Issuer or any Guarantor with the
net cash proceeds from an incurrence of, or in exchange for, Permitted
Refinancing Indebtedness;


 


50

















 


(4)           the
payment of any dividend or distribution by a Restricted Subsidiary of the Company
to the holders of its Equity Interests on a pro rata basis;


 


(5)           so
long as no Default (except a Reporting Default) has occurred and is continuing
or would be caused thereby, the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Restricted
Subsidiary held by any current or former officer, director or employee of the
Company or any Affiliate of the Company pursuant to any equity subscription
agreement or plan, stock or unit option agreement, shareholders’ agreement or
similar agreement; provided that
the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests may not exceed $2.5 million in any calendar year; provided further that such amount in any
calendar year may be increased by an amount not to exceed (a) the cash proceeds received by
the Company or any of its Restricted Subsidiaries from the sale of Equity
Interests of the Company to members of management or directors of the Company
or its Affiliates that occurs after the date of this Indenture (to the extent
the cash proceeds from the sale of such Equity Interests have not otherwise
been applied to the payment of Restricted Payments by virtue of clause (1)(b) or
(2)(b) of the preceding paragraph, plus (b) the cash proceeds of key
man life insurance policies received by the Company or any of its Restricted
Subsidiaries after the date of this Indenture;


 


(6)           the
payment, at any time prior to the consummation of the initial public offering
of Equity Interests of the Company, of tax distributions in accordance with the
terms of, and in an amount not to exceed that required by, the Operating
Agreement in effect as of the date of this Indenture;


 


(7)           so
long as no Default (except a Reporting Default) has occurred or is continuing
or would be caused thereby, other Restricted Payments in an aggregate amount
since the date of this Indenture not to exceed $75.0 million;


 


(8)           so
long as no Default (except a Reporting Default) has occurred and is continuing
or would be caused thereby, payments of dividends on Disqualified Stock issued
pursuant to Section 4.09 hereof;


 


(9)           repurchases
of Capital Stock deemed to occur upon exercise of stock options, warrants or
other convertible securities if such Capital Stock represents a portion of the
exercise price of such options, warrants or convertible securities;


 


(10)         cash
payments in lieu of the issuance of fractional shares in connection with the
exercise of warrants, options or other securities convertible or exchangeable
for Capital Stock of the MLP;


 


(11)         any
Restricted Payment made in connection with or as a result of MLP Formation Transactions;
provided that the amount of Incremental Funds shall be reduced by the amount
any distribution described in clause (iii) of the definition of MLP
Formation Transactions; or


 


(12)         the
payment of distributions to the Sponsors of up to $125 million from borrowings
under the Credit Agreement.


 


(d)           The
amount of all Restricted Payments (other than cash) will be the Fair Market
Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.  The Fair Market Value of any assets or
securities that are required to be valued by this covenant will be determined,
in the case of amounts under $30.0 million, by an officer of the Company and,
in the case of amounts over $30.0 million, by the Board of Directors of the
Company, whose determination shall be evidenced by a Board Resolution.  For purposes of determining compliance with
this Section 4.07, in the event that a Restricted Payment meets the
criteria of more than one of the categories of Restricted Payments described in
the preceding clauses (1) through (12) of Section 4.07(c) hereof,
the Company will be permitted to classify (or later classify or reclassify in
whole or in part in its sole discretion) such Restricted Payment in any manner
that complies with this Section 4.07.


 


51

















 


Section 4.08           Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.


 


(a)           The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Restricted Subsidiary to:


 


(1)           pay
dividends or make any other distributions on its Capital Stock to the Company
or any of its Restricted Subsidiaries, or pay any Indebtedness or other
obligations owed to the Company or any of its Restricted Subsidiaries;


 


(2)           make
loans or advances to the Company or any of its Restricted Subsidiaries; or


 


(3)           transfer
any of its properties or assets to the Company or any of its Restricted
Subsidiaries.


 


(b)           However, the preceding restrictions
in Section 4.08(a) hereof will not apply to encumbrances or
restrictions existing under or by reason of:


 


(1)           agreements
as in effect on the date of this Indenture and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings of those agreements or the Indebtedness to which they relate; provided that the amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacement or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend, distribution and other payment restrictions
than those contained in those agreements on the date of this Indenture as
determined in good faith by the Company;


 


(2)           this
Indenture, the Notes and the Note Guarantees;


 


(3)           agreements
governing other Indebtedness permitted to be incurred under the provisions of Section 4.09
hereof and any
amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings of those agreements; provided that the restrictions therein are not materially
more restrictive, taken as a whole, than those contained in this Indenture, the
Notes and the Note Guarantees as determined in good faith by the Company;


 


(4)           applicable
law, rule, regulation or order;


 


(5)           any
instrument governing Indebtedness or Capital Stock of a Person acquired by the
Company or any of its Restricted Subsidiaries as in effect at the time of such
acquisition, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, provided
that, in the case of Indebtedness, such Indebtedness was otherwise permitted by
the terms of this Indenture to be incurred, and any amendments, restatements,
modifications, renewals, supplements, refundings, replacements or refinancings
of those agreements; provided
that the amendments, restatements, modifications, renewals, supplements, refundings,
replacements or refinancings are not materially more restrictive, taken as a
whole, with respect to such dividend and other payment restrictions than those
contained in those agreements on the date of such acquisition as determined in
good faith by the Company;


 


(6)           customary
non-assignment provisions in Hydrocarbon purchase and sale or exchange
agreements or similar operational agreements or in licenses, sublicenses,
leases or subleases, in each case entered into in the ordinary course of
business and consistent with past practices;


 


(7)           Capital
Lease Obligations, mortgage financings or purchase money obligations, in each
case for property acquired in the ordinary course of business that impose
restrictions on that property of the nature described in clause (3) of the
preceding Section 4.08(a);


 


52

















 


(8)           any
agreement for the sale or other disposition of a Restricted Subsidiary of the
Company that restricts distributions by that Restricted Subsidiary pending its
sale or other disposition;


 


(9)           Permitted
Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced;


 


(10)         Liens
permitted to be incurred under the provisions of Section 4.12 hereof that
limit the right of the debtor to dispose of the assets subject to such Liens;


 


(11)         provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements, asset sale agreements, stock sale agreements and other
similar agreements entered into in the ordinary course of business;


 


(12)         any
agreement or instrument relating to any property or assets acquired after the
date of this Indenture, so long as such encumbrance or restriction relates only
to the property or assets so acquired and is not and was not created in
anticipation of such acquisitions;


 


(13)         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;


 


(14)         encumbrances
and restrictions contained in the terms of any Indebtedness or any agreement
pursuant to which such Indebtedness was issued if the encumbrance or
restriction applies only in the event of a payment default or default with
respect to a financial covenant contained in such Indebtedness or agreement and
such encumbrance or restriction is not materially more disadvantageous to the
Holders of the Notes than is customary in comparable financings (as determined
in good faith by the Company) and the Company determines that any such
encumbrance or restriction will not materially affect any Issuer’s ability to
make principal or interest payments on the Notes; and


 


(15)         restrictions on the sale, lease or
transfer of property or assets arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not, individually or in
the aggregate, detract from the value of property or assets of the Company or
any Restricted Subsidiary in any manner material to the Company or any
Restricted Subsidiary.


 


Section 4.09           Incurrence of Indebtedness
and Issuance of Disqualified Stock.


 


(a)           The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise, with respect to
(collectively, “incur”) any Indebtedness
(including Acquired Debt), and the Company shall not and shall not permit any
of its Restricted Subsidiaries to issue any Disqualified Stock; provided, however,
that each Company and any of its Restricted Subsidiaries may incur Indebtedness
(including Acquired Debt) or issue Disqualified Stock, if the Fixed Charge
Coverage Ratio for the Company’s most recently ended four full fiscal quarters
for which internal financial statements are available immediately preceding the
date on which such additional Indebtedness is incurred or such Disqualified
Stock is issued would have been at least 2.0 to 1.0, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred or Disqualified Stock had been
issued, as the case may be, at the beginning of such four-quarter period.


 


(b)           provisions of Section 4.09(a) hereof
will not prohibit the incurrence of any of the following items of Indebtedness
(collectively, “Permitted Debt”) or the issuance of any Disqualified Stock
described in clause (12) below:


 


(1)           the
incurrence by any Issuer or any Restricted Subsidiary of additional
Indebtedness (including letters of credit) under one or more Credit Facilities
in an aggregate principal amount at any one time outstanding under this clause (1) (with
letters of credit being deemed to have a principal amount equal 


 


53

















 


to the maximum potential
liability of the Company and its Subsidiaries thereunder) not to exceed the
greater of (i) the Borrowing Base or (ii) $550 million less the
aggregate amount of all Net Proceeds of Asset Sales applied by the Company or
any of its Restricted Subsidiaries since the date of this Indenture to repay
any term Indebtedness under a Credit Facility or to repay any revolving credit
Indebtedness under a Credit Facility which result in a corresponding commitment
reduction thereunder;


 


(2)           the
incurrence by any Company or its Restricted Subsidiaries of the Existing
Indebtedness;


 


(3)           the
incurrence by the Issuers and the Guarantors of Indebtedness represented by the
Notes issued and sold in this offering and the related Note Guarantees;


 


(4)           the
incurrence by any Company or any of its Restricted Subsidiaries of Indebtedness
represented by Capital Lease Obligations, mortgage financings or purchase money
obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of design, construction, installation or
improvement of property, plant or equipment used in the business of the Company
or a Restricted Subsidiary, in an aggregate principal amount at any time
outstanding, including all Permitted Refinancing Indebtedness incurred to
renew, refund, refinance or replace, defease or discharge any Indebtedness
incurred pursuant to this clause (4), not to exceed the greater of (a) $25.0
million or (b) 2.5% of the Consolidated Net Tangible Assets of the
Company;


 


(5)           the
incurrence by any Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used
to refund, refinance or replace Indebtedness that was permitted by this
Indenture to be incurred under Section 4.09(a) above or clause (2), (3) or
(13) of this Section 4.09(b) or this clause (5);


 


(6)           the
incurrence by any Company or any of its Restricted Subsidiaries of intercompany
Indebtedness between or among the Company and any of the Company’s Restricted
Subsidiaries; provided, however, that:


 


(a)           if
an Issuer is the obligor on such Indebtedness and a Guarantor is not the obligee,
such Indebtedness must be expressly subordinated to the prior payment in full
in cash of all Obligations with respect to the Notes, or if a Guarantor is the
obligor on such Indebtedness and neither an Issuer nor another Guarantor is the
obligee, such Indebtedness must be expressly subordinated to the prior payment
in full in cash of all Obligations with respect to the Notes Guarantee of such
Guarantor; and


 


(b)           (i) any
subsequent issuance or transfer of Equity Interests that results in any such
Indebtedness being held by a Person other than the Company or a Restricted
Subsidiary of the Company and (ii) any sale or other transfer of any such
Indebtedness to a Person that is neither the Company nor a Restricted
Subsidiary of the Company will be deemed, in each case, to constitute an incurrence
of such Indebtedness by the Company or such Restricted Subsidiary, as the case
may be, that was not permitted by this clause (6);


 


(7)           the
incurrence by any Company or any of its Restricted Subsidiaries of Hedging
Obligations;


 


(8)           the
guarantee by any Issuer or any Restricted Subsidiary of Indebtedness of an
Issuer or any Restricted Subsidiary that was permitted to be incurred by
another provision of this Section 4.09;


 


(9)           the
incurrence by any Company or any of its Restricted Subsidiaries of obligations
relating to net gas balancing positions arising in the ordinary course of
business and consistent with past practice;


 


54

















 


(10)         the
incurrence by any Company or any of its Restricted Subsidiaries of Permitted
Hedged Inventory Obligations and Permitted Operating Obligations;


 


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


 


(12)         the
issuance by any Restricted Subsidiary of the Company to the Company or to any Restricted
Subsidiary of the Company of any Disqualified Stock; provided, however,
that:


 


(a)           any
subsequent issuance or transfer of Equity Interests that results in any such
preferred securities being held by a Person other than the Company or a
Restricted Subsidiary of the Company; and


 


(b)           any
sale or other transfer of any such preferred securities to a Person that is not
either the Company or a Restricted Subsidiary of the Company


 


shall
be deemed, in each case, to constitute an issuance of such preferred securities
by such Restricted Subsidiary that was not permitted by this clause (12);


 


(13)         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 promptly
extinguished;


 


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


 


(15)         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;


 


(16)         Indebtedness
owed on a short-term basis to banks and other financial institutions incurred
in the ordinary course of business of the Company and any Restricted Subsidiary
with such banks or financial institutions that arises in connection with
ordinary banking arrangements to manage cash balances of the Company and any Restricted
Subsidiary;


 


(17)         Indebtedness
of the Company or any Restricted Subsidiary consisting of the financing of
insurance premiums, in each case, in the ordinary course of business;


 


(18)         the
incurrence by the Company or any of its Restricted Subsidiaries of Acquired
Debt in connection with a transaction meeting either one of the financial tests
set forth in Section 5.01(a)(4);


 


(19)         the
incurrence by the Company or any of its Restricted Subsidiaries of Contribution
Indebtedness;


 


(20)         the
incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
in connection with MLP Formation Transactions to the extent such Indebtedness
is extinguished in connection with the proceeds from a Qualified MLP IPO; and


 


55

















 


(21)         the
incurrence by the Company or any of its Restricted Subsidiaries of additional
Indebtedness in an aggregate principal amount at any time outstanding, not to
exceed the greater of (a) $50.0
million or (b) 4% of the Consolidated Net Tangible Assets of the Company.


 


(c)           For purposes of determining
compliance with this Section 4.09 and Section 4.12 hereof, in the
event that an item of Indebtedness (including Acquired Debt) meets the criteria
of more than one of the categories of Permitted Debt described in clauses (1) through
(21) of Section 4.09(b) hereof, or is entitled to be incurred pursuant
to Section 4.09(a) hereof, the Company will be permitted to classify
(or later classify or reclassify in whole or in part in its sole discretion)
such item of Indebtedness in any manner that complies with this Section 4.09.  Any Indebtedness under Credit Facilities on
the date of this Indenture shall be considered incurred under Section 4.09(b)(1) above.


 


(d)           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
Disqualified Stock in the form of additional shares of the same class of
Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an
issuance of Disqualified Stock for purposes of this Section 4.09; provided, in each such case, that the
amount thereof is included in Fixed Charges of the Company as accrued.  For purposes of determining compliance with
any U.S. dollar denominated restriction on the incurrence of Indebtedness, the
U.S. 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
exceeded solely as a result of fluctuations in exchange rates or currency
values.


 


Section 4.10           Asset Sales.


 


(a)           The Company shall
not, and shall not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale unless:


 


(1)           such
Company (or the Restricted Subsidiary, as the case may be) receives
consideration at the time of the Asset Sale at least equal to the Fair Market
Value (measured as of the date of the definitive agreement with respect to such
Asset Sale) of the assets or Equity Interests issued or sold or otherwise disposed
of; and


 


(2)           except
in the case of a Permitted Asset Swap, at least 75% of the consideration received
in the Asset Sale by such Company or such Restricted Subsidiary is in the form
of cash or Cash Equivalents.


 


For
purposes of this provision, each of the following will be deemed to be cash:


 


(a)           any
liabilities, as shown on the Company’s most recent consolidated balance sheet,
of the Company or any Restricted Subsidiary (other than contingent liabilities
and liabilities that are by their terms subordinated to the Notes or any Note Guarantee) that are
assumed by the transferee of any such assets pursuant to a customary novation
or indemnity agreement that releases such Company or such Restricted Subsidiary
from or indemnifies against further liability;


 


(b)           any
securities, notes or other obligations received by such Company or any such Restricted
Subsidiary from such transferee that are converted by such Company or such
Restricted Subsidiary into cash within 120 days after such Asset Sale, to the
extent of the cash received in that conversion;


 


(c)           any
Designated Non-cash Consideration received by the Company or any of its Restricted
Subsidiaries in such Asset Sale; provided
that the aggregate Fair Market Value of such Designated Non-cash Consideration,
taken together with the Fair Market Value at the time of receipt of all other
Designated 


 


56

















 


Non-cash Consideration
received pursuant to this clause (c) less the amount of Net Proceeds
previously realized in cash from prior Designated Non-cash Consideration is
less than $5.0 million; and


 


(d)           any
property, stock or assets of the kind referred to in clauses (1), (3) or (4) of
Section 4.10(b) hereof.


 


(b)           Within 365 days after the receipt of
any Net Proceeds from an Asset Sale, the Company (or the applicable Restricted
Subsidiary, as the case may be) may apply an amount equal to such Net Proceeds,
at its option:


 


(1)           to
acquire all or substantially all of the assets of, or any Capital Stock of,
another Permitted Business (provided that
in the case of any such acquisition of Capital Stock, after giving effect thereto,
the Permitted Business is or becomes a Restricted Subsidiary of the Company);


 


(2)           to
repay Indebtedness that is secured by a Permitted Lien on any assets that were
sold in such Asset Sale;


 


(3)           to
make a capital expenditure;


 


(4)           to
acquire other assets that are not classified as current assets under GAAP and
that are used or useful in a Permitted Business;


 


(5)           in
the case of an Asset Sale by a Restricted Subsidiary that is not a Guarantor,
to repay, repurchase or redeem Indebtedness of the Company or any Restricted
Subsidiary that is not contractually subordinated in right of payment to the
Notes; or


 


(6)           any
combination of the foregoing clauses (1) through (5).


 


(c)           In the case of clauses (1), (3) and
(4) of Section 4.10(b) hereof, the Company (or the applicable
Restricted Subsidiary, as the case may be) will be deemed to have complied with
its obligations in Section 4.10(b) hereof if it enters into a binding
commitment to acquire such assets or Capital Stock or make such capital expenditure
prior to 365 days after the receipt of the applicable Net Proceeds; provided that such binding commitment will
be subject only to customary conditions and such acquisition or expenditure is
completed within 180 days following the expiration of the aforementioned 365-day
period.  If the acquisition or
expenditure contemplated by such binding commitment is not consummated on or
before such 180th day, and the Company (or the applicable Restricted Subsidiary,
as the case may be) has not applied the applicable Net Proceeds for another
purpose permitted by paragraphs (a) or (b) of this Section 4.10
on or before such 180th day, such commitment shall be deemed not to have been a
permitted application of Net Proceeds.


 


(d)           Pending the final application of any
Net Proceeds of an Asset Sale, the Company (or the applicable Restricted
Subsidiary) may temporarily reduce revolving credit borrowings or otherwise
invest the Net Proceeds in any manner that is not prohibited by this Indenture.


 


(e)           Any Net Proceeds from Asset Sales
that are not applied or invested as provided in clauses (b) and (c) of
this Section 4.10 will constitute “Excess
Proceeds.”  When the aggregate
amount of Excess Proceeds exceeds $25.0 million, within forty-five (45) days
thereof, the Issuers will make a joint offer (an “Asset Sale Offer”) to all holders of Notes and all holders
of other Indebtedness ranking pari passu with
the Notes containing provisions similar to those set forth in this Indenture
with respect to offers to purchase, prepay or redeem with the proceeds of sales
of assets in accordance with Section 3.08 hereof to purchase, prepay or
redeem the maximum principal amount of Notes as Units and such other pari passu Indebtedness (plus all accrued
interest on the Indebtedness and the amount of all fees and expenses, including
premiums, incurred in connection therewith) that may be purchased, prepaid or
redeemed out of the Excess Proceeds.  The
offer price in any Asset Sale Offer will be equal to 100% of the principal
amount, plus accrued and unpaid interest, if any, to the date of purchase,
prepayment or redemption, subject to the rights of Holders of Notes on the
relevant record date to receive interest due on the relevant interest payment
date, and will be payable in cash.  If
any Excess Proceeds remain after consummation of an Asset Sale Offer, the Company
and its Restricted Subsidiaries may use those Excess Proceeds for any purpose
not otherwise prohibited by this


 


57














 


Indenture.  If
the aggregate principal amount of Notes as Units and other pari passu Indebtedness tendered into (or
required to be prepaid or redeemed in connection with) such Asset Sale Offer
exceeds the amount of Excess Proceeds, the Trustee will select the Notes as
Units and such other pari passu Indebtedness
to be purchased on a pro rata basis, based on the amounts tendered or required
to be prepaid or redeemed (with such adjustments as may be deemed appropriate
by the Company so that only Notes in denominations of $2,000, or an integral
multiple of $1,000 in excess thereof, will be purchased).  Upon completion of each Asset Sale Offer, the
amount of Excess Proceeds will be reset at zero.


 


(f)                                    The Issuers will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities
laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with each repurchase of Notes pursuant to a Change of
Control Offer or an Asset Sale Offer.  To
the extent that the provisions of any securities laws or regulations conflict
with the Change of Control or Asset Sale provisions of Section 3.08 hereof
or this Section 4.10, the Issuers will 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 such compliance.


 


Section 4.11           Transactions with
Affiliates.


 


(a)                                  The Company
will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company (other than
transactions with entities on an arms-length basis existing on the date of this
Indenture) (each, an “Affiliate Transaction”),
involving aggregate payments or consideration in excess of $500,000 for any
Affiliate Transaction or in excess of $2.5 million per year for all Affiliate
Transactions unless:


 


(1)                                  the Affiliate Transaction is
on terms that are no less favorable to such Company or the relevant Restricted
Subsidiary than those that would have been obtained in a comparable transaction
by such Company or such Restricted Subsidiary with an unrelated Person; and


 


(2)                                  such Company delivers to the
Trustee:


 


(A)                              with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $25.0 million, a resolution of the Board
of Directors of such Company set forth in an Officers’ Certificate of the
Company certifying that such Affiliate Transaction complies with this Section 4.11(a) and
that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors of such Company; and


 


(B)                                with respect to
any Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $50.0 million (other than a Development Project
Acquisition), an opinion as to the fairness to such Company or such Restricted
Subsidiary of such Affiliate Transaction from a financial point of view issued
by an accounting, appraisal or investment banking firm of national standing.


 


(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)                                  any employment or consulting
agreement, employee benefit plan, stock option or stock ownership plan, officer
or director indemnification agreement or any similar arrangement entered into
by the Company or any of its Restricted Subsidiaries in the ordinary course of
business and payments pursuant thereto and issuances of Capital Stock, options,
warrants or other rights to acquire Capital Stock, in each case, pursuant
thereto;


 


58

















 


(2)                                  transactions between or
among the Company and/or the Company’s Restricted Subsidiaries;


 


(3)                                  transactions with a Person
(other than an Unrestricted Subsidiary of the Company) that is an Affiliate of
the Company solely because the Company owns, directly or through a Restricted
Subsidiary, an Equity Interest in, or controls, such Person;


 


(4)                                  payment of reasonable and
customary compensation (including bonuses) fees and reimbursements of expenses
(pursuant to indemnity arrangements or otherwise) of officers, directors, employees
or consultants of the Company or any of its Restricted Subsidiaries;


 


(5)                                  any issuance of Equity
Interests (other than Disqualified Stock) of the Company to Affiliates of the
Company;


 


(6)                                  Permitted Investments and
Restricted Payments that do not violate Section 4.07 hereof;


 


(7)                                  loans or advances to
employees in the ordinary course of business not to exceed $2.0 million in the
aggregate at any one time outstanding;


 


(8)                                  transactions relating to the
purchase or sale of Hydrocarbons, the lease of storage capacity or the
transportation of Hydrocarbons, in each case with investors in the Company or
its Affiliates entered into in the ordinary course of business consistent with
past practice;


 


(9)                                  all transactions described
under the “Certain Relationships and Related Party Transactions” section of the
Offering Memorandum and MLP Formation Transactions; and


 


(10)                            the payments to
Affiliates made in accordance with the terms of, and in an amount not to exceed
that required by, the Operating Agreement in effect as of the date of this
Indenture.


 


Section 4.12           Liens.


 


The
Company will not and will not permit any of its Restricted Subsidiaries to,
create, incur, assume or otherwise cause or suffer to exist or become effective
any Lien of any kind (other than Permitted Liens) securing Indebtedness upon
any of their property or assets, now owned or hereafter acquired, unless the
Notes or any Note Guarantee of such Restricted Subsidiary, as applicable, is
secured on an equal and ratable basis (or on a senior basis to, in the case of
obligations subordinated in right of payment to the Notes or such Note Guarantee,
as the case may be) with the obligations so secured until such time as such
obligations are no longer secured by a Lien.


 


Section 4.13           Business Activities.


 


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


 


Section 4.14           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,
partnership or other 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; 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


 


59

















 


franchise,
or the corporate, partnership or other existence of any of its Subsidiaries if
the Board of Directors of the Company 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)                                  If a Change of Control occurs, each
Holder will have the right to require the Issuers to jointly repurchase all or
any part of that Holder’s Notes as Units pursuant to this Section 4.15 (a “Change of Control Offer”). 
Any such repurchase of the Notes shall include the U.S. Notes and the
Canadian Notes on a pro rata basis based on the aggregate principal amount of
the Notes outstanding at the time of repurchase.  In the Change of Control Offer, the Issuers
will jointly offer the Holders a purchase price in cash equal to 101% of the
aggregate principal amount of Notes repurchased as Units, plus accrued and
unpaid interest, if any, on the Notes repurchased 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 (30) days following any Change of Control, the Issuers will mail 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 10 days and no later than 60 days
from the date such notice is mailed (the “Change of Control Payment
Date”);


 


(3)                                  that any Unit (and
corresponding Notes) not tendered will continue to accrue interest;


 


(4)                                  that, unless the Issuers
default in the payment of the Change of Control Payment, any Units (and
corresponding 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 as Units purchased pursuant to a Change of Control Offer will be
required to surrender the Units (and corresponding Notes), with the form
entitled “Option of Holder to Elect Purchase” attached to the Notes completed,
or transfer a beneficial interest in the Units 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, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Units (and
corresponding Notes) delivered for purchase, the serial number for Units held
in definitive form and a statement that such Holder is withdrawing his election
to have the Notes purchased as Units; and


 


(7)                                  that Holders whose Units (and
corresponding Notes) are being purchased only in part will be issued new Units
(and corresponding Notes) equal in principal amount to the unpurchased portion
of the Units (and corresponding 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 the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.15, the Company will comply with the
applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.15 by virtue of such
compliance.


 


60

















 


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


 


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


 


(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 as Units; and


 


(3)                                  deliver or cause to be
delivered to the Trustee the Units (and corresponding Notes) properly accepted
together with an Officers’ Certificate of each Issuer stating the aggregate
principal amount of Notes or portions of Notes as Units being purchased by the
Issuers.


 


(c)                                  The Paying Agent will promptly mail to
each Holder properly tendered the Change of Control Payment for such Units (and
corresponding Notes), and the Trustee will promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Unit (and
corresponding Notes) equal in principal amount to any unpurchased portion of
the Units (and corresponding Notes) surrendered, if any.  The Issuers will jointly announce the results
of the Change of Control Offer to the Holders on or as soon as practicable
after the Change of Control Payment Date.


 


(d)                                 The Issuers will not be required to make
a Change of Control Offer upon a Change of Control if (1) a third party
makes the Change of Control Offer in the manner, 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 has been given pursuant to Section 3.01(a) through
3.01(c) hereof unless and until there is a default in payment of the
applicable redemption price.  Notwithstanding
anything to the contrary contained herein, a Change of Control Offer by an
Issuer or a third party may be made in advance of a Change of Control,
conditioned upon the consummation of such Change of Control, if a definitive
agreement is in place for the Change of Control at the time the Change of
Control Offer is made.


 


Section 4.16           Payments for Consent.


 


The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder for or as an inducement to
any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid and is
paid to all Holders 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 the Company or any of
its Restricted Subsidiaries acquires or creates another Subsidiary (other than
an Excluded Subsidiary or an Unrestricted Subsidiary) after the date of this
Indenture, then that Subsidiary will become a Guarantor of the Notes and
execute a supplemental indenture in substantially the form attached as Exhibit F
to this Indenture and deliver an Opinion of Counsel satisfactory to the Trustee
within thirty (30) business days of the date on which it was acquired or created.


 


Section 4.18           Designation of Restricted and
Unrestricted Subsidiaries.


 


The
Board of Directors of the Company may designate any Restricted Subsidiary
(other than an Issuer) to be an Unrestricted Subsidiary if that designation
would not cause a Default.  If a
Restricted Subsidiary is designated as an Unrestricted Subsidiary, the
aggregate Fair Market Value of all outstanding Investments owned by the Company
and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted
will be deemed to be an Investment made as of the time of the designation and
will reduce the amount available for Restricted Payments under Section 4.07
hereof or under one or more clauses of the definition of Permitted Investments,
as determined by such Company.  That
designation will only be permitted if the Investment would be permitted at that
time and if the Restricted Subsidiary otherwise meets the definition of an
Unrestricted Subsidiary.  The Board of
Directors of the Company 


 


61

















 


may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if that redesignation would not cause a Default.


 


Any
designation of a Subsidiary of the Company as an Unrestricted Subsidiary will
be evidenced to the Trustee by filing with the Trustee a certified copy of a
resolution of the Board of Directors giving effect to such designation and an
Officers’ Certificate of the Company certifying that such designation complied
with the preceding conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements
as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the Company will be in
default of such covenant.  The Board of
Directors of the Company may at any time designate any Unrestricted Subsidiary
to be a Restricted Subsidiary of the Company; provided
that such designation will be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary, and such designation will only be permitted if (1) such
Indebtedness is permitted under Section 4.09 hereof, calculated on a pro
forma basis as if such designation had occurred at the beginning of the
applicable reference period; and (2) no Default or Event of Default would
be in existence following such designation.


 


Section 4.19           Additional Amounts.


 


(a)                                  All payments made by or on behalf of an
Issuer or any Guarantor (each a “Payor”)
under or with respect to the Notes or any Note Guarantee will be made free and
clear of and without withholding or deduction for or on account of any present
or future tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and other similar liabilities related thereto)
(collectively, “Taxes”) imposed
or levied by or on behalf of any jurisdiction in which such Payor is organized,
resident or doing business for tax purposes or from or through which such Payor
(or its agents) makes any payment on the Notes or any Note Guarantee or any
department or political subdivision thereof (each, a “Relevant Taxing
Jurisdiction”), unless such Payor is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof.  If a Payor is so required to withhold or deduct
any amount for or on account of Taxes from any payment made under or with
respect to the Notes or any Note Guarantee, such Payor, subject to the
exceptions stated below, will pay such additional amounts (“Additional Amounts”) as may be necessary
such that the net amount received in respect of such payment by each holder
after such withholding or deduction (including withholding or deduction
attributable to Additional Amounts payable hereunder) will not be less than the
amount the holder would have received if such Taxes had not been required to be
so withheld or deducted.


 


(b)                                 A Payor will not, however, pay Additional
Amounts to a holder or beneficial owner of Notes:


 


(i)                                     with which the Payor does
not deal at arm’s length (for the purpose of the Income Tax Act (Canada)) at
the time of making such payment,


 


(ii)                                  to the extent the Taxes
giving rise to such Additional Amounts would not have been imposed but for the
existence of any present or former connection between a Holder (or the
beneficial owner of, or person ultimately entitled to obtain an interest in ,
such Notes, including a fiduciary, settler, beneficiary, member, partner,
shareholder or other equity interest owner of , or possessor of power over,
such holder or beneficial owner, if such holder or beneficial owner is an
estate, trust, partnership, limited liability company, corporation or other
entity) and the Relevant Taxing Jurisdiction (including being a citizen or
resident or national of, or carrying on a business or maintaining a permanent
establishment in, the Relevant Taxing Jurisdiction other than any connection
resulting solely from the acquisition, ownership, or disposition of Notes, the
receipt of payments thereunder and/or the exercise or enforcement of rights
under any Notes or any Note Guarantee);


 


(iii)                               to the extent the Taxes
giving rise to such Additional Amounts would not have been imposed but for the
failure of the holder or beneficial owner of Notes, to the extent such holder
or beneficial owner is legally eligible to do so, 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 Payor and the holder or
beneficial owner or


 


62

















 


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 statute,
treaty, regulation or administrative practice of a Relevant Taxing Jurisdiction
as a precondition to exemption from, or reduction in the rate of deduction or
withholding of, such Taxes imposed by the Relevant Taxing Jurisdiction
(including, without limitation, a certification that the holder or beneficial
owner is not resident in the Relevant Taxing Jurisdiction) and (b) the
Payor has provided the Trustee with 30 days’ prior written notice of such
requirement;


 


(iv)                              with respect to any estate,
inheritance, gift, sales or any similar Taxes;


 


(v)                                 if such holder is a
fiduciary or partnership or person other than the sole beneficial owner of such
payment and the Taxes giving rise to such Additional Amounts would not have
been imposed on such payment had the holder been the beneficiary, partner or
sole beneficial owner, as the case may be, of such Note;


 


(vi)                              to the extent the Taxes
giving rise to such Additional Amounts would not have been imposed but for the
presentation by the holder of any Note, where presentation is required, for
payment on a date more than 30 days after the date on which payment became due
and payable or the date on which payment thereof is duly provided for,
whichever occurs later;


 


(vii)                           with respect to any Tax
imposed or levied by, or on behalf of, the United States of America or any
State thereof or the District of Columbia (or any political subdivision of any
of the foregoing);


 


(viii)                        with respect to any Taxes
imposed on a payment to an individual and required to be made pursuant to the
European Union Directive on the taxation of savings income which was adopted by
the ECOFIN Council (the Council of the 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 countries
and dependent or associated territories;


 


(ix)                                with respect to any Tax
which is payable otherwise than by withholding from payments on or in respect
of the Notes or any Note Guarantee; or


 


(x)                                   any combination of items
(i), (ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) of this Section 4.19(b).


 


(c)                                  At least 30 calendar days prior to each
date on which any payment under or with respect to the Notes or any Note
Guarantee is due and payable, if a Payor will be obligated to pay Additional
Amounts with respect to such payment (unless such obligation to pay Additional
Amounts arises after the 35th day prior to the date on which such payment is
due and payable, in which case it will be promptly thereafter), the Payor will
deliver to the Trustee an Officers’ Certificate stating that such Additional
Amounts will be payable and the amounts so payable and will set forth such
other information necessary to enable the Trustee to pay such Additional
Amounts to holders on the payment date. 
The Payor will promptly publish a notice in accordance with the
provisions set forth in Section 13.01 hereof stating that such Additional
Amounts will be payable and describing the obligation to pay such amounts.


 


(d)                                 The Payors, jointly and severally, will
indemnify and hold harmless the holders of Notes, and, upon written request of
any Holder, reimburse such holder for the amount of (i) any Taxes levied
or imposed by a Relevant Taxing Jurisdiction and payable by such holder in
connection with payments made under or with respect to the Notes held by such
holder or under any Note Guarantee; and (ii) any Taxes levied or imposed
with respect to any reimbursement under the foregoing clause (i) or this
clause (ii), so that the net amount received by such holder after such
reimbursement will not be less than the net amount such holder would have
received if the Taxes giving rise to the reimbursement described in clauses (i) and/
or (ii) had not been imposed, provided,
however, that the indemnification or reimbursement obligations
provided for in this Section 4.19(d) shall not extend to Taxes for
which the holder of the Notes would not have been eligible to receive payment
of Additional Amounts hereunder by virtue of 


 


63

















 


clauses (b)(i) through (b)(x) above
or to the extent such holder received Additional Amounts with respect to such
payments.


 


(e)                                  In addition, the Payor will pay any
stamp, issue, registration, court, documentation, excise or other similar
taxes, charges and duties, including any interest, penalties and any similar
liabilities with respect thereto, imposed by any Relevant Taxing Jurisdiction
at any time in respect of the execution, issuance, registration or delivery of
the Notes, any Note Guarantee or any other document or instrument referred to
thereunder and any such taxes, charges or duties imposed by any Relevant Taxing
Jurisdiction as a result of, or in connection with, any payments made pursuant
to the Notes or any Note Guarantee and/or the enforcement of the Notes or any
Note Guarantee and/or any other such document or instrument.


 


(f)                                    The obligations
described in this Section 4.19 will survive any termination, defeasance or
discharge of the Indenture and will apply mutatis
mutandis to any successor Person to any Payor and to any jurisdiction
in which such successor is organized or is otherwise resident or doing business
for tax purposes or any jurisdiction from or through which payment is made by
such successor or its respective agents. 
Whenever this Indenture refers to, in any context, the payment of
principal, premium, if any, interest or any other amount payable under or with
respect to any Note, such reference shall include the payment of Additional
Amounts or indemnification payments as described hereunder, if applicable.


 


Section 4.20           Changes in Covenants When Notes Rated
Investment Grade.


 


(a)                                  If at any time
the Notes are assigned an Investment Grade Rating by both Rating Agencies and
no Default or Event of Default has occurred and is continuing under this
Indenture, the Company and its Restricted Subsidiaries will no longer be
subject to the provisions of this Indenture described in Sections 4.07, 4.08,
4.09, 4.10, 4.11, 4.13, 4.18 and 5.01(a)(4)(i) hereof (collectively the “Suspended Covenants”).


 


(b)                                 If at any time
the Company and its Restricted Subsidiaries are not subject to Suspended Covenants
pursuant to Section 4.20(a), the Company may not designate any of its
Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of
Unrestricted Subsidiary.


 


(c)                                  If either of the
Rating Agencies withdraws its ratings or downgrades the ratings assigned to the
Notes below the Investment Grade Ratings so that the Notes do not have an
Investment Grade Rating from both Rating Agencies, the Company and its
Restricted Subsidiaries will thereafter again be subject to the Suspended
Covenants, subject to the terms, conditions and obligations set forth in this
Indenture (each such date of reinstatement being the “Reinstatement
Date”).


 


(d)                                 Compliance with
the Suspended Covenants with respect to Restricted Payments made after the
Reinstatement Date will be calculated in accordance with the terms of Section 4.07
hereof as though such Section had been in effect during the entire period
of time from which the Notes are issued.


 


ARTICLE 5

SUCCESSORS


 


Section 5.01           Merger, Consolidation or Sale of
Assets.


 


(a)                                  The Company will not, and will not permit
an Issuer to, directly or indirectly:  (1) consolidate,
merge or amalgamate with or into another Person (whether or not the Company or
such Issuer is the surviving entity), or (2) sell, assign, transfer,
convey or otherwise dispose of (or permit their Restricted Subsidiaries to
sell, assign, transfer, convey or otherwise dispose of) all or substantially
all of the properties or assets of the Company and their Restricted
Subsidiaries taken as a whole, in one or more related transactions, to another
Person, unless:


 


(1)                                  either:  (a) the Company or such Issuer, as
applicable, is the surviving entity; or (b) the Person formed by or
surviving any such consolidation or merger (if other than the Company or an
Issuer) or to which such sale, assignment, transfer, conveyance or other
disposition has been made (the “Successor
Person”) is an entity organized or existing under the laws of the
United States, any state of the United


 


64

















 


States or the District of
Columbia or Canada or any political subdivision thereof; and, if such entity is
not a corporation, a co-obligor of the Notes is a corporation organized or
existing under any such laws;


 


(2)                                  the Person formed by or
surviving any such consolidation, merger or amalgamation (if other than the
Company or such Issuer) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes all the obligations of
the Company or such Issuer, as applicable, under the Notes and this Indenture
pursuant to agreements reasonably satisfactory to the Trustee;


 


(3)                                  immediately after such
transaction, no Default or Event of Default exists; and


 


(4)                                  the Company, such Issuer or
the Person formed by or surviving any such consolidation, merger or
amalgamation (if other than the Company or an Issuer, or to which such sale,
assignment, transfer, conveyance or other disposition has been made would, on
the date of such transaction after giving pro forma effect thereto and any
related financing transactions as if the same had occurred at the beginning of
the applicable four-quarter period either (i) be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in Section 4.09(a) hereof or (ii) have a
Fixed Charge Coverage Ratio that is equal to or less than the Fixed Charge
Coverage Ratio of the Company immediately prior to such consolidation, merger,
sale, assignment, transfer, conveyance or other disposition.


 


(b)                                 This Section 5.01 shall not apply to
any sale, assignment, transfer, conveyance, lease or other disposition of
assets between or among the Company and the Company’s Restricted Subsidiaries.  Clauses (3) and (4) of Section 5.01(a) hereof
will not apply to any merger, consolidation or amalgamation of the Company (1) with
or into one of its Restricted Subsidiaries for any purpose or (2) with or
into an Affiliate solely for the purpose of reincorporating the Company in
another jurisdiction.  The Company or
Issuer shall be deemed to be the surviving entity in the event of an
amalgamation of either that is governed by the laws of Canada or a province
thereof.


 


Section 5.02           Successor Substituted.


 


Upon any consolidation, merger or amalgamation, or
any sale, assignment, transfer, lease, conveyance or other disposition of all
or substantially all of the assets of the Company or an Issuer in a transaction
that is subject to, and that complies with the provisions of Section 5.01
hereof, the successor Person formed by such consolidation or into or with which
the Company or such Issuer is merged or amalgamated or to which such sale,
assignment, transfer, lease, conveyance or other disposition is made shall
succeed to, and be substituted for (so that from and after the date of such
consolidation, merger, amalgamation, sale, assignment, transfer, lease,
conveyance or other disposition, the provisions of this Indenture referring to
the “Company” or such “Issuer” shall refer instead to the successor Person and
not to the Company or such Issuer, as applicable), and may exercise every right
and power of the Company or such Issuer under this Indenture with the same
effect as if such successor Person had been named as the Company or such Issuer
herein; provided, however,
that the predecessor of the Company or such Issuer shall not be relieved from
the obligation to pay the principal of, or premium or interest, if any, on the
Notes except in the case of a sale of all of the Company’s or such Issuer’s
assets in a transaction that is subject to, and that complies with the
provisions of, Section 5.01 hereof.


 


ARTICLE 6

DEFAULTS AND REMEDIES


 


Section 6.01           Events of Default.


 


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


 


(1)                                  default for thirty (30) days
in the payment when due of interest on the Notes;


 


(2)                                  default in the payment when
due (at maturity, upon redemption or otherwise) of the principal of, or
premium, if any, on the Notes;


 


65

















 


(3)                                  failure by the Company or
any of its Restricted Subsidiaries to comply with the provisions of Sections
4.10, 4.15 or 5.01 hereof;


 


(4)                                  failure by the Company or
any of its Restricted Subsidiaries for sixty (60) days (or such greater period
as specified in this Indenture) after notice of breach or default to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Units then outstanding voting as a single class to comply with
any of the other agreements in this Indenture;


 


(5)                                  default under any mortgage,
indenture or instrument under which there may be issued or by which there may
be secured or evidenced any Indebtedness for money borrowed by the Company or
any of its Restricted Subsidiaries (or the payment of which is guaranteed by
the Company or any of its Restricted Subsidiaries), whether such Indebtedness
or Guarantee now exists, or is created after the date of this Indenture, if
that default:


 


(A)                 is caused by a
failure to pay principal of, or interest or premium, if any, on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on
the date of such default (a “Payment Default”);
or


 


(B)                   results in the
acceleration of such Indebtedness prior to its express maturity,


 


and,
in each case, the principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates in
excess of an amount equal to 2.0% of the Company’s Consolidated Net Tangible
Assets;


 


(6)                                  failure by the Company or
any of its Restricted Subsidiaries to pay final judgments (other than those
covered by insurance for which the insurer has not disclaimed liability)
entered by a court or courts of competent jurisdiction aggregating in excess of
an amount equal to 2.0% of the Company’s Consolidated Net Tangible Assets,
which judgments are not paid, discharged or stayed for a period of 60 days;


 


(7)                                  except as permitted by this
Indenture, any Note Guarantee of a Significant Subsidiary is held in any
judicial proceeding to be unenforceable or invalid or ceases for any reason to
be in full force and effect, or any Guarantor, or any Person acting on behalf
of any Guarantor, denies or disaffirms its obligations under its Note Guarantee
(other than by reason of release of a Guarantor from its Note Guarantee in
accordance with the terms of this Indenture); and


 


(8)                                  the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary or any group of its
Restricted Subsidiaries that, taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of Bankruptcy Law:


 


(A)                              commences a voluntary case,


 


(B)                                consents to the entry of an
order for relief against it in an involuntary case,


 


(C)                                consents to the appointment
of a custodian, receiver, receiver manager, interim receiver or sequestrator of
it or for all or substantially all of its property,


 


(D)                               makes a general assignment
for the benefit of its creditors, or


 


(E)                                 generally is not paying its
debts as they become due; or


 


(9)                                  a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:


 


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(A)                              is for relief against the
Company or any of its Restricted Subsidiaries that is a Significant Subsidiary
or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary in an involuntary case;


 


(B)                                appoints a custodian,
receiver, receiver manager, interim receiver or sequestrator of the Company or
any of its Restricted Subsidiaries that is a Significant Subsidiary or any
group of Restricted Subsidiaries of the Company that, taken together, would
constitute a Significant Subsidiary or for all or substantially all of the
property of the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries of the Company
that, taken together, would constitute a Significant Subsidiary; or


 


(C)                                orders the liquidation of
the Company or any of its Restricted Subsidiaries that is a Significant
Subsidiary or any group of Restricted Subsidiaries of the Company that, taken together,
would constitute a Significant Subsidiary;


 


and the order or decree remains undischarged,
unstayed or unremedied and in effect for sixty (60) consecutive days.


 


Section 6.02           Acceleration.


 


(a)                                  In the case of
an Event of Default specified in clause (8) or (9) of Section 6.01
hereof, with respect to the Company, any Restricted Subsidiary of the Company
that is a Significant Subsidiary or any group of Restricted Subsidiaries of the
Company that, taken together, would constitute a Significant Subsidiary, 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 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.


 


(b)                                 In the event of
a declaration of acceleration of the Notes because an Event of Default has occurred
and is continuing as a result of the acceleration of any Indebtedness under
clause (5) of Section 6.01 hereof, the declaration of acceleration of
the Notes shall be automatically annulled if the holders of any Indebtedness described
in clause (5) of Section 6.01 hereof have rescinded the declaration
of acceleration in respect of such Indebtedness within thirty (30) days of the
date of such declaration; provided that (1) the
annulment of the acceleration of the Notes would not conflict with any judgment
or decree of a court of competent jurisdiction, (2) all existing Defaults
or Events of Default, except nonpayment of principal, premium or interest, if
any, on the Notes that became due solely because of the acceleration of the
Notes, have been cured or waived and (3) remedies have not been taken with
respect to collateral securing such Indebtedness.


 


(c)                                  The Holders of
a majority in aggregate principal amount of the then outstanding Units 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 this indenture except a continuing Default or Event of Default
in the payment of interest or premium, if any, on or the principal of, the
Notes.


 


Section 6.03           Other Remedies.


 


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


 


(b)                                 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.


 


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Section 6.04           Waiver of Past Defaults.


 


Holders of not less than a majority in the aggregate
principal amount of the then outstanding Units by notice to the Trustee may, on
behalf of the Holders of all of the Notes, waive an existing Default or Event
of Default and its consequences hereunder, except a continuing Default or Event
of Defaults in the payment of interest or premium, if any, on or the principal
of, 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
Units may rescind an acceleration and its consequences, including any related
payment default that resulted in 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.


 


The Holders of a majority in aggregate principal
amount of the then outstanding Units 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 or
that may involve the Trustee in personal liability. In addition, the Trustee
may withhold from Holders notice of any continuing Default or Event of Default
if it determines that withholding notice is in their interest, except a Default
or Event of Default relating to the payment of principal, interest or premium,
if any.


 


Section 6.06                                Limitation on Suits.


 


(a)                                  Subject to the
provisions of Article 7 hereof, in case an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any
Holders unless such Holders have offered to the Trustee indemnity or security
satisfactory to it against any loss, liability or expense. Except to enforce
the right to receive payment of principal, interest or premium, if any, when
due, no Holder may pursue any remedy with respect to this Indenture or the
Notes unless:


 


(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 the Trustee to pursue the remedy;


 


(3)                                  such Holders
have offered the Trustee security or indemnity satisfactory to it against any
loss, liability or expense;


 


(4)                                  the Trustee has
not complied with such request within sixty (60) days after the 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 Units have not
given the Trustee a direction inconsistent with such request within such 60-day
period.


 


(b)                                 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
of, or premium or interest, if any, 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; provided that a Holder shall not
have the right to institute any such suit for the enforcement of payment if and
to the extent that the 


 


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institution or prosecution
thereof or the entry of judgment therein would, under applicable law, result in
the surrender, impairment, waiver or loss of the Lien of this Indenture upon
any property subject to such Lien.


 


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, or premium or interest, if any, 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 and the reasonable compensation, expenses,
disbursements and advances of the Trustee and 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 and its
agents and counsel) and the Holders of the Notes allowed in any judicial
proceedings relative to the Issuers (or any other obligor upon the Notes),
their creditors or their property and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements, advances and any
other amounts due to the Trustee and its agents and counsel and any other
amounts due to the Trustee under Section 7.06 hereof. To the extent that
the payment of any such compensation, expenses, disbursements, advances and any
other amounts due to the Trustee and its agents and counsel and any other
amounts due to the Trustee under Section 7.06 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall
be deemed to authorize the Trustee 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,
it shall pay out the money in the following order:


 


First: 
to the Trustee and its agents and attorneys for amounts due to the
Trustee under Section 7.06 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, if any, and interest, if any, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Notes
for principal, premium, if any, and interest, if any, respectively; and


 


Third: 
to the Issuers or the applicable Guarantor, as the case may be, its or
their successors or assigns, or as a court of competent jurisdiction shall
direct.


 


The Trustee may, upon written notice to the Issuers,
fix a record date and payment date for any payment to Holders of Notes pursuant
to this Section 6.10.


 


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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 and expenses, 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 will exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in its exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.


 


(b)                                 Except during
the continuance of an Event of Default:


 


(1)                                  the duties of
the Trustee will be determined solely by the express provisions of this Indenture
and the Trustee need perform only those duties that are specifically set forth
in this Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and


 


(2)                                  in the absence
of bad faith on its part, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee will examine such certificates and opinions 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
stated 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 (c) 
does not limit the effect of paragraph (b) 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 paragraphs (a), (b), and (c) of
this Section 7.01.


 


(e)                                  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 any money received by it except as the
Trustee may agree in writing with the Issuers. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required
by law.


 


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(g)                                 The Trustee
agrees to accept and act upon facsimile or electronic transmission (including
pdf) of documents hereunder, it being understood that originals of such shall
be provided to the Trustee in a timely manner.


 


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 Officers’ Certificate
of the applicable Issuer 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 Officers’ Certificate or Opinion of Counsel. The Trustee may consult with
counsel 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 shall not be responsible for the misconduct
or negligence of any agent appointed with due care.


 


(d)                                 The Trustee
shall not be liable for any action it takes or omits to take in good faith that
it believes to be authorized or within the rights or powers conferred upon it
by this Indenture.


 


(e)                                  Unless
otherwise specifically provided in this Indenture, any demand, request,
direction or notice from an Issuer shall be sufficient if signed by an Officer
of such Issuer, and any resolution of the Board of Directors of an Issuer shall
be sufficient if evidenced by a copy of such resolution certified by an
Officers’ Certificate of such Issuer to have been duly adopted and in full
force and effect on the date thereof.


 


(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
it against the losses, liabilities and expenses that might be incurred by it in
compliance with such request or direction.


 


(g)                                 In no event
shall the Trustee be responsible or liable for special, indirect, 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 of any Default or Event of Default unless
the Trustee has received written notice of such event at the Corporate Trust
Office of the Trustee, and such notice references the Units and this Indenture.


 


(i)                                     The rights,
privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder,
and each agent, custodian and other Person employed to act 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 an Issuer
or any Affiliate of an Issuer with the same rights it would have if it were not
Trustee.  However, in the event that the
Trustee acquires any conflicting interest it must eliminate such conflict
within ninety (90) days or resign.  Any
Agent may do the same with like rights and duties.  The Trustee is also subject to Section 7.09
hereof.


 


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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, the Units or
the Notes, it shall not be accountable for the Issuers’ use of the proceeds
from the Units 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 Units or Notes or any other document in connection with
the sale of the Units 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 known to the Trustee, the Trustee will mail to Holders
a notice of the Default or Event of Default within ninety (90) days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, or premium or interest, if any, on any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers
in good faith determines that withholding the notice is in the interests of the
Holders.


 


Section 7.06                                Compensation and Indemnity.


 


(a)                                  The Issuers and
the Guarantors, jointly and severally, will pay to each of the Trustee such compensation
as is agreed to from time to time by the Issuers and the Trustee for its
acceptance of this Indenture and services hereunder. 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, except for any such disbursement,
advance or expense as shall have been caused by the Trustee’s own negligence or
willful misconduct.  Such expenses will
include the reasonable compensation, disbursements and expenses of the Trustee’s
respective agents and counsel, as applicable.


 


(b)                                 The Issuers and
the Guarantors, jointly and severally, will indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the reasonable costs and expenses of enforcing this Indenture
against the Issuers and the Guarantors (including this Section 7.06) 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 or expense shall be determined to have been caused
by its own negligence or willful misconduct. 
The Trustee will notify the Issuers promptly of any claim of which the
Trustee has received written notice and for which it may seek indemnity.  Failure by the Trustee to so notify the
Issuers 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 shall pay the
reasonable fees and expenses of such counsel. Neither the Issuers nor any
Guarantor need pay for any settlement made without its consent, which consent
will not be unreasonably withheld.


 


(c)                                  The obligations
of the Issuers and the Guarantors under this Section 7.06 will survive the
satisfaction and discharge of this Indenture.


 


(d)                                 To secure the
Issuers’ and the Guarantors’ payment obligations in this Section 7.06, the
Trustee will have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal of, or
premium or interest, if any, on particular Notes. Such Lien will survive the
satisfaction and discharge of this Indenture.


 


(e)                                  When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(8) or (9) 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.


 


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Section 7.07                                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, upon thirty (30) days’ written notice to the Issuers resign and be
discharged from the trust hereby created. The Holders of a majority in
aggregate principal amount of the then outstanding Units 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 7.09 hereof;


 


(2)                                  the Trustee is
adjudged a bankrupt or an insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Law;


 


(3)                                  a custodian or
public officer takes charge of the Trustee or its property; or


 


(4)                                  the Trustee
becomes incapable of acting.


 


(c)                                  If the Trustee
resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, the Issuers will promptly appoint a successor Trustee.  Within one year after the successor Trustee
takes office, the Holders of a majority in aggregate principal amount of the
then outstanding Units may appoint a successor Trustee to replace the successor
Trustee appointed by the Issuers.


 


(d)                                 If a successor
Trustee does not take office within sixty (60) days after the retiring Trustee
resigns or is removed, the retiring Trustee at the expense of the Issuers, 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 7.09 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 that all sums owing to the Trustee hereunder have
been paid and subject to the Lien provided for in Section 7.06
hereof.  Notwithstanding replacement of
the Trustee pursuant to this Section 7.07, the Issuers’ obligations under Section 7.06
hereof will continue for the benefit of the retiring Trustee.


 


Section 7.08                                Successor Trustee by Merger, etc.


 


If the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act will be
the successor Trustee.


 


Section 7.09                                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 $100.0 million as set forth in its most recent published annual report
of condition.


 


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ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE


 


 


Section 8.01                                Option to Effect Legal Defeasance
or Covenant Defeasance.


 


The Issuers may, at their joint option and at any
time, at the option of their Boards of Directors evidenced by a resolution set
forth in their respective Officers’ Certificates, elect to have either Section 8.02
or 8.03 hereof be applied to all outstanding Notes upon compliance with the
conditions set forth in this Article 8.


 


Section 8.02                                Legal Defeasance and Discharge.


 


Upon the Issuers’ exercise under Section 8.01
hereof of the option applicable to this Section 8.02, each of the Issuers
and each of the Guarantors will, subject to the satisfaction of the conditions
set forth in Section 8.04 hereof, be deemed to have been discharged from
their obligations with respect to all outstanding Notes (including the Note
Guarantees) on the date the conditions set forth below are satisfied
(hereinafter, “Legal Defeasance”).  For this purpose, Legal Defeasance means that
the Issuers and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes (including the Note
Guarantees), which will thereafter be deemed to be “outstanding” only for the
purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in clauses (1) and (2) of this Section 8.02, and to
have satisfied all their other obligations under such Notes, the Note
Guarantees and this Indenture (and the Trustee, on demand of and at the expense
of the Issuers, shall execute proper instruments acknowledging the same),
except for the following provisions which will survive until otherwise
terminated or discharged hereunder:


 


(1)                                  the rights of
Holders of outstanding Notes to receive payments in respect of the principal
of, or interest or premium, if any, on such Notes when such payments are due
from the trust referred to in Section 8.04 hereof;


 


(2)                                  the Issuers’
obligations with respect to such Notes under Article 2 and Section 4.02
hereof;


 


(3)                                  the rights,
powers, trusts, duties and immunities of the Trustee, and the Issuers’ and the
Guarantors’ obligations in connection therewith; and


 


(4)                                  this Article 8.


 


Subject to compliance with this Article 8, the
Issuers may exercise their joint option under this Section 8.02 notwithstanding
the prior exercise of their option under Section 8.03 hereof.


 


Section 8.03                                Covenant Defeasance.


 


Upon the Issuers’ exercise under Section 8.01
hereof of the option applicable to this Section 8.03, the Issuers and each
of the Guarantors will, subject to the satisfaction of the conditions set forth
in Section 8.04 hereof, be released from each of their obligations under
the covenants contained in Sections 3.08, 4.03, 4.04, 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18 and clause (4) of Section 5.01
hereof with respect to the outstanding Notes on and after the date the
conditions set forth in Section 8.04 hereof are satisfied (hereinafter, “Covenant Defeasance”), and the Notes will 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 will continue to be deemed “outstanding” for
all other purposes hereunder (it being understood that such Notes will 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 will 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 will not constitute a Default or an Event
of Default under Section 6.01 hereof, but, except as specified above, the
remainder of this


 


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Indenture and such Notes and
Note Guarantees will be unaffected thereby. 
In addition, upon the Issuers’ exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, Sections 6.01(3) through
6.01(7) hereof will not constitute Events of Default.


 


Section 8.04                                Conditions to Legal or Covenant
Defeasance.


 


In order to exercise either Legal Defeasance under Section 8.02
hereof or Covenant Defeasance under Section 8.03 hereof:


 


(1)                                  the Issuers
must irrevocably deposit with the Trustee, in trust, for the benefit of the Holders,
cash in U.S. dollars, non-callable Government Securities, or a combination of
cash in U.S. dollars and non-callable Government Securities, in amounts as will
be sufficient, in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants, to pay the principal
of, or interest and premium, if any, on the outstanding Notes on the stated
date for payment thereof or on the applicable redemption date, as the case may
be, and the Issuers must specify whether the Notes are being defeased to such
stated date for payment or to a particular redemption date;


 


(2)                                  in the case of
Legal Defeasance under Section 8.02 hereof, the Issuers must deliver to
the Trustee an Opinion of Counsel in the United States reasonably acceptable to
the Trustee confirming that (a) the Issuers have received from, or there
has been published by, the Internal Revenue Service a ruling or (b) since
the date of this Indenture, there has been a change in the applicable U.S.
federal income tax law to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the outstanding Notes will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such 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 and (b) an opinion of
counsel in Canada reasonably acceptable to the Trustee or an advance tax ruling
from the Canada Revenue Agency (or successor agency) to the effect that the
holders of the outstanding Notes will not recognize income, gain or loss for
Canadian income tax purposes as a result of such Legal Defeasance and will be
subject to Canadian 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 under Section 8.03 hereof, the Issuers must deliver to
the Trustee an Opinion of Counsel reasonably acceptable to the Trustee
confirming that the Holders of the outstanding Notes will not recognize income,
gain or loss for U.S. federal or Canadian income tax purposes as a result of
such Covenant Defeasance and will be subject to U.S. federal and Canadian
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;


 


(4)                                  no Default or
Event of Default has occurred and is continuing on the date of such deposit
(other than a Default or Event of 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)                                  such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under, any material agreement or instrument (other than
this Indenture and the agreements governing any other Indebtedness being
defeased, discharged or replaced) to which any Issuer or any of the Guarantors
is a party or by which any Issuer or any of the Guarantors is bound;


 


(6)                                  the Issuers
must deliver to the Trustee an Officers’ Certificate stating that the deposit
was not made by the Issuers with the intent of preferring the Holders of Notes
over the other creditors of the Issuers with the intent of defeating,
hindering, delaying or defrauding any creditors of the Issuers or others; and


 


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(7)                                  the Issuers
must deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.


 


Section 8.05                                Deposited Money and Government
Securities to be Held in Trust; Other Miscellaneous Provisions.


 


Subject to Section 8.06 hereof, all money and
non-callable Government Securities (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of
this Section 8.05, the “Trustee”)
pursuant to Section 8.04 hereof in respect of the outstanding Notes will
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 either of the Issuers acting as Paying Agent) as
the Trustee may determine, to the applicable Holders of all sums due and to
become due thereon in respect of principal, or premium or interest, if any, but
such money need not be segregated from other funds except to the extent
required by law.


 


The Issuers will pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04
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.


 


Notwithstanding anything in this Article 8 to
the contrary, the Trustee will deliver or pay to the Issuers from time to time
upon the joint request of the Issuers any money or non-callable Government
Securities held by either of the Issuers as provided in Section 8.04
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 8.04(1) 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 8.06                                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, or premium or interest, if any, on any Note and remaining unclaimed for two
years after such principal, or premium or interest, if any, has become due and
payable shall be paid to the Issuers on their joint request or (if then held by
either of the Issuers) will be discharged from such trust; and the applicable
Holder will thereafter be permitted to look only 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, will
thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuers cause to be published once, in the
New York Times and The Wall Street Journal (national edition), notice that such
money remains unclaimed and that, after a date specified therein, which will
not be less than thirty (30) days from the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuers.


 


Section 8.07                                Reinstatement.


 


If the Trustee or Paying Agent is unable to apply
any U.S. dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03 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 will be revived and reinstated
as though no deposit had occurred pursuant to Section 8.02 or 8.03 hereof
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with Section 8.02 or 8.03 hereof, as the case may be; provided, however, that,
if the Issuers make any payment of principal of, or premium or interest, if
any, on any Note following the reinstatement of its obligations, the Issuers
will be subrogated to the rights of the applicable Holders to receive such
payment from the money held by the Trustee or Paying Agent.


 


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ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER


 


Section 9.01           Without Consent of
Holders.


 


Notwithstanding Section 9.02 of this Indenture,
without the consent of any Holder, the Issuers, the Guarantors and the Trustee
may amend or supplement this Indenture, the Notes and the Note Guarantees:


 


(1)           to cure any
ambiguity, defect or inconsistency;


 


(2)           to provide for
uncertificated Units or Notes in addition to or in place of certificated Units
and Notes;


 


(3)           to provide for the
assumption of an Issuer’s or a Guarantor’s obligations to Holders of Notes and
Note Guarantees by a successor to an Issuer’s or such Guarantor pursuant to Article 5
or Article 10 hereof;


 


(4)           to make any change
that would provide any additional rights or benefits to the Holders or that
does not adversely affect the legal rights hereunder of any such Holder;


 


(5)           to conform the text
of this Indenture, the Notes or the Note Guarantees to any provision of the “Description
of Notes” section of the Offering Memorandum, to the extent that such provision
in that “Description of Notes” was intended to be a verbatim recitation of a
provision of this Indenture, the Notes or the Note Guarantees, which intent may
be evidenced by an Officers’ Certificate of the applicable Issuer or Guarantor
to that effect;


 


(6)           to provide for the
issuance of Additional Units in accordance with the limitations set forth in
this Indenture as of the date hereof;


 


(7)           to allow any
Guarantor to execute a supplemental indenture and/or a Note Guarantee with
respect to the Notes;


 


(8)           to evidence and
provide for the acceptance of appointment hereunder by a successor trustee
pursuant to the requirements of this Indenture;


 


(9)           to provide for the
release of a Guarantee of the Notes which release is otherwise permitted under
this Indenture and would not result in a Default or Event of Default; or


 


(10)         to comply with the
requirements of the SEC in order to effect or maintain the qualification of
this Indenture under the Trust Indenture Act of 1939, as amended.


 


Section 9.02           With Consent of Holders.


 


Except as provided below in this Section 9.02,
the Issuers, the Guarantors and the Trustee may amend or supplement this
Indenture (including, without limitation, Sections 3.08, 4.10 and 4.15 hereof),
the Notes or the Note Guarantees with the consent of the Holders of at least a
majority in aggregate principal amount of the then outstanding Units
(including, without limitation, consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Units and/or Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, or premium or interest, if any, on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or 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 Units (including, without limitation, consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Units and/or Notes). Section 2.08 hereof shall determine which
Units are considered to be “outstanding” for purposes of this Section 9.02.


 


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Upon the joint request of the Issuers accompanied by
a resolution of their Boards of Directors authorizing the execution of any such
amended or supplemental indenture, and upon the filing with the Trustee of
evidence reasonably 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 7.02 hereof, the Trustee will join with the Issuers
and the Guarantors in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly 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.


 


It is not necessary for the consent of the Holders
of Notes under this Section 9.02 to approve the particular form of any
proposed amendment, supplement or waiver, but it is sufficient if such consent
approves the substance thereof.


 


After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Issuers will mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers 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
at least a majority in aggregate principal amount of the Units then outstanding
may waive compliance in a particular instance by the Issuers and the Guarantors
with any provision of this Indenture, the Notes or the Note Guarantees.
However, without the consent of each Holder of the Units affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect
to any Units held by a non-consenting Holder):


 


(1)           reduce the principal
amount of Units whose Holders must consent to an amendment, supplement or waiver;


 


(2)           reduce the principal
of or change the fixed maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the Notes (except as provided
above with respect to Sections 3.08, 4.10 and 4.15 hereof);


 


(3)           reduce the rate of
or change the time for payment of interest, including default interest, on any
Note;


 


(4)           waive a Default or
Event of Default in the payment of principal of, or interest or premium, if
any, on the 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 Units or a waiver of the payment default that resulted from such
acceleration);


 


(5)           make any Note
payable in money other than that stated in the Notes;


 


(6)           make any change in
the provisions of this Indenture relating to waivers of past Defaults or the
rights of Holders of Notes to receive payments of principal of, or interest or
premium, if any, on the Notes;


 


(7)           waive a redemption
payment with respect to any Note (other than a payment required by Sections
3.08, 4.10 or 4.15 hereof);


 


(8)           release any
Guarantor from any of its obligations under its Note Guarantee or this Indenture,
except in accordance with the terms of this Indenture;


 


(9)           adversely affect the
ranking of the Notes or any Note Guarantee; or


 


(10)         make any change in
the preceding amendment and waiver provisions.


 


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Section 9.03           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. 
However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the amendment, supplement or waiver becomes effective.  An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.


 


Section 9.04           Notation on or Exchange of
Units and Notes.


 


The Trustee may place an appropriate notation about
an amendment, supplement or waiver on any Note thereafter authenticated.  Each Issuer 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 9.05           Trustee to Sign
Amendments, etc.


 


The Trustee will sign any amended or supplemental
indenture authorized pursuant to this Article 9 if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee.  The Issuers
may not sign an amended or supplemental indenture until the Board of Directors
of each Issuer approves it. In executing any amended or supplemental indenture,
the Trustee will be provided with and (subject to Section 7.01 hereof)
will be fully protected in relying upon an Officers’ Certificate of each of the
Issuers and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture is authorized or permitted by this Indenture.


 


ARTICLE 10

NOTE GUARANTEES


 


Section 10.01         Guarantees.


 


(a)           Subject to this Article 10,
each of the Guarantors (except the U.S. Issuers with respect to the U.S. Notes
and the Canadian Issuers with respect to the Canadian Notes) hereby, jointly
and severally, unconditionally guarantees (each, a “Note
Guarantee”) to each Holder holding a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Issuers hereunder or thereunder, that:


 


(1)           the principal of,
and interest and premium, if any, 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 and premium, if any, on the
Notes, if lawful, and all other obligations of the Issuers to the Holders or
the Trustee under this Indenture will be promptly paid in full or performed,
all in accordance with the terms of this Indenture and the Notes; 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.


 


(b)           Failing payment when
due of any amount so guaranteed or any performance so guaranteed for whatever
reason, the Guarantors will be jointly and severally obligated to pay the same
immediately.  Each Guarantor agrees that
this is a guarantee of payment and not a guarantee of collection.


 


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(c)           The 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 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 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 covenants that its Note Guarantee will not be discharged except
by complete performance of the obligations contained in the Notes and this
Indenture.


 


(d)           If any Holder or the
Trustee is required by any court or otherwise to return to any Issuer, the Guarantors
or any custodian, trustee, receiver, receiver-manager, interim receiver,
liquidator or other similar official acting in relation to any Issuer or the
Guarantors, any amount paid by either to the Trustee or such Holder, the Note
Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.


 


(e)           Each Guarantor
agrees that it shall 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 Guarantor further agrees that, as between the 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 the Note Guarantees, 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 Guarantors for the purpose of the Note Guarantee.  The Guarantors will have the right to seek
contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Note Guarantees.


 


Section 10.02         [Reserved]


 


Section 10.03         Limitation on Guarantor
Liability.


 


Each Guarantor, and by its acceptance of Units and/or
Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Note Guarantee of such Guarantor not constitute a fraudulent
preference, transfer or conveyance or a transfer at undervalue for purposes of
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal, state, provincial or foreign law to the
extent applicable to any Note Guarantee. 
To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantors hereby irrevocably agree that the obligations of each such 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 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 Guarantor in respect of the obligations of such other Guarantor under
this Article 10, result in the obligations of such Guarantor under its
Note Guarantee not constituting a fraudulent transfer or conveyance.


 


Section 10.04         Execution and Delivery of
Note Guarantee.


 


To evidence its Note Guarantee set forth in Section 10.01
hereof, each 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 Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture will be executed on behalf of such Guarantor by
one of its Officers.


 


Each 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 a Note Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which the Note Guarantee is endorsed, the Note
Guarantee will be valid nevertheless.


 


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The delivery of any Notes as Units by the Trustee,
after the authentication thereof hereunder, will constitute due delivery of the
applicable Note Guarantees set forth in this Indenture on behalf of the
applicable Guarantors. Neither the Issuers nor any Guarantor shall be required
to make a notation on the Notes to reflect any Note Guarantee or any release,
termination or discharge thereof provided for in this Indenture.


 


In the event that the Company or any of its
Restricted Subsidiaries acquires or creates any Subsidiary after the date of
this Indenture, if required by Section 4.17(a) hereof, the Company
shall cause such Subsidiary to comply with the provisions of Section 4.17(a) hereof
and this Article 10, to the extent applicable.


 


Section 10.05         Guarantors May Consolidate,
etc., on Certain Terms.


 


Except as otherwise provided in Section 10.06
hereof, no Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge or amalgamate with or into
(whether or not such Guarantor is the surviving Person) another Person, other
than the Company, an Issuer or another Guarantor, unless:


 


(1)           immediately after
giving effect to such transaction, no Default or Event of Default exists; and


 


(2)           either:


 


(a)           the Person acquiring the assets in
any such sale or disposition or the Person formed by or surviving any such
consolidation, merger or amalgamation (if other than the Guarantor) (the “Successor Guarantor”) assumes all the obligations of that
Guarantor under its Note Guarantee and this Indenture pursuant to a
supplemental indenture satisfactory to the Trustee; or


 


(b)           subject to Section 5.01 hereof,
the Net Proceeds of such sale or other disposition are applied in accordance
with the applicable provisions of this Indenture, including without limitation,
Section 4.10 hereof.


 


In case of any such consolidation, merger,
amalgamation, 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
applicable Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Guarantor, such
successor Person will succeed to and be substituted for the Guarantor with the
same effect as if it had been named herein as a Guarantor.  Such successor Person thereupon may cause to
be signed any or all of the Note Guarantees to be endorsed upon all of the
applicable 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, merger or
amalgamation of a Guarantor with or into the Company, an Issuer or another
Guarantor, or will prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company, an Issuer or
another Guarantor.


 


Section 10.06         Releases.


 


(a)           In the event of any
sale or other disposition of all or substantially all of the assets of any
Guarantor, by way of merger, amalgamation, consolidation or otherwise, to a
Person that is not (either before or after giving effect to such transaction)
the Company or a Restricted Subsidiary of the Company, if the sale or other
disposition does not violate Section 4.10 hereof then the corporation
acquiring the property will be released and relieved of any obligations under
the applicable Note Guarantee;


 


(b)           In the event of any
sale or other disposition of Capital Stock of any Guarantor to a Person that is
not (either before or after giving effect to such transaction) the Company or a
Restricted Subsidiary of the


 


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Company,
if the sale or other disposition does not violate Section 4.10 hereof and
the Guarantor ceases to be a Restricted Subsidiary of the Company as a result
of the sale or other disposition, then such Guarantor will be released and relieved
of any obligations under its Note Guarantees;


 


provided, in both
cases, that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 hereof. Upon delivery by the applicable
Issuer to the Trustee of an Officers’ Certificate and an Opinion of Counsel to
the effect that such sale or other disposition was made by the Guarantor in
accordance with the provisions of this Indenture, including without limitation Section 4.10
hereof, the Trustee will execute any documents reasonably required in order to
evidence the release of the Guarantor from its obligations under its Note
Guarantees.


 


(c)           Upon designation of
any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in
accordance with the terms of this Indenture, such Guarantor will be released
and relieved of any obligations under its Note Guarantees.


 


(d)           Upon Legal
Defeasance or Covenant Defeasance in accordance with Article 8 hereof or
satisfaction and discharge of this Indenture in accordance with Article 11
hereof, each Guarantor will be released and relieved of any obligations under
its Note Guarantees.


 


(e)           Immediately prior to
and in connection with a Qualified MLP IPO and the MLP Formation Transactions,
each of Niska Holdings I and Niska Holdings II will be released and relieved of
any obligations under its Note Guarantees.


 


Any Guarantor not released from its obligations
under its Note Guarantee as provided in this Section 10.06 will remain
liable for the full amount of principal of, premium on, if any, and interest,
if any, on the applicable Notes and for the other obligations of such Guarantor
under this Indenture as provided in this Article 10.


 


ARTICLE 11

SATISFACTION AND DISCHARGE


 


Section 11.01         Satisfaction and
Discharge.


 


This Indenture will be discharged and will cease to
be of further effect as to all Notes issued hereunder, when:


 


(1)           either:


 


(a)           all Notes that have been authenticated,
except lost, stolen or destroyed Notes that have been replaced or paid and
Notes for whose payment money has been deposited in trust and thereafter repaid
to the Issuers, have been delivered to the Trustee for cancellation; or


 


(b)           all Notes that have not been
delivered to the Trustee for cancellation (i) have become due and payable
by reason of the mailing of a notice of redemption or otherwise, (ii) will
become due and payable within one year or (iii) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Issuers, and an Issuer or any Guarantor has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
solely for the benefit of the Holders, cash in U.S. dollars, non-callable
Government Securities, or a combination of cash in U.S. dollars and
non-callable Government Securities, in amounts as will be sufficient, without
consideration of any reinvestment of interest, to pay and discharge the entire
Indebtedness on the Notes not delivered to the Trustee for cancellation for
principal, premium, if any, and accrued interest to the date of maturity or
redemption;


 


(2)           in respect of clause
(1)(b) of this Section 11.01, no Default or Event of Default has occurred
and is continuing on the date of the deposit (other than a Default or Event of
Default resulting from


 


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the
borrowing of funds to be applied to such deposit and any similar deposit
relating to other Indebtedness and, in each case, the granting of Liens to
secure such borrowings) and the deposit will not result in a breach or
violation of, or constitute a default under, any other instrument to which an
Issuer or any Guarantor is a party or by which an Issuer or any Guarantor is
bound (other than with respect to the borrowing of funds to be applied
concurrently to make the deposit required to effect such satisfaction and
discharge and any similar concurrent deposit relating to other Indebtedness,
and in each case the granting of Liens to secure such borrowings);


 


(3)           any Issuer or any
Guarantor has paid or caused to be paid all sums payable by it 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
redemption date, as the case may be.


 


In addition, the Issuers must deliver an Officers’
Certificate and an Opinion of Counsel to the Trustee stating that all
conditions precedent to satisfaction and discharge have been satisfied.


 


Notwithstanding the satisfaction and discharge of
this Indenture, if money has been deposited with the Trustee pursuant to clause
(1)(b) of this Section 11.01, the provisions of Sections 11.02 and
8.06 hereof will survive.  In addition,
nothing in this Section 11.01 will be deemed to discharge those provisions
of Section 7.07 hereof, that, by their terms, survive the satisfaction and
discharge of this Indenture.


 


Section 11.02         Application of Trust
Money.


 


Subject to the provisions of Section 8.06
hereof, all money deposited with the Trustee pursuant to Section 11.01
hereof shall be held in trust and applied by it, in accordance with the
provisions of the applicable Notes and this Indenture, to the payment, either
directly or through any Paying Agent (including an Issuer acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest and premium, if any, for whose payment such money
has been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.


 


If the Trustee or Paying Agent is unable to apply
any money or Government Securities 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, an applicable Issuer’s and any applicable Guarantor’s
obligations under this Indenture and the applicable Notes shall be revived and
reinstated as though no deposit had occurred pursuant to Section 11.01
hereof; provided that if the Issuers have made
any payment of principal of, premium on, if any, or interest, if any, on any
Notes because of the reinstatement of its obligations, the Issuers shall be
subrogated to the rights of the applicable Holders to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.


 


ARTICLE 12

[Reserved]


 


ARTICLE 13

MISCELLANEOUS


 


 


Section 13.01         Notices.


 


Any notice or communication by the Issuers, the
Company, 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 any Issuers and/or any Guarantor:


 


83

















 


c/o Niska Gas Storage, 

2780 West Liberty Road

Gridley, CA 95948

Facsimile:  1-866-452-8832

Attention:  Chief Legal Officer


 


With a copy to:


 


Vinson & Elkins LLP


666 Fifth Avenue, 26th Floor


New York, NY 10103


Facsimile
No.:  (212)-237-0100

Attention:  Mike Rosenwasser


 


And to:


 


Latham & Watkins
LLP


555 Eleventh Street, NW, Suite 1000


Washington, DC 20004


Facsimile No.: 
(202) 637-2201

Attention:  Patrick H. Shannon


 


If to the Trustee:


 


The Bank of New York Mellon

101 Barclay Street — Floor 8W

New York, NY  10286

Facsimile: (212) 815-5704

Attention:  Lawrence J. O’Brien




Any Issuer, 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) will be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five (5) 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
a courier, if sent by overnight air courier guaranteeing next day delivery.


 


Any notice or communication to a Holder will be
mailed by first class mail, certified or registered, return receipt requested,
or by overnight air courier guaranteeing next day delivery to its address shown
on the register kept by the Registrar. 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 in the manner
provided above within the time prescribed, it is duly given, whether or not the
addressee receives it.


 


If an Issuer mails a notice or communication to
Holders, it will mail a copy to the Trustee at the same time.


 


Section 13.02         Certificate and Opinion as
to Conditions Precedent.


 


Upon any request or application by an Issuer to the
Trustee to take any action under this Indenture, such Issuer shall furnish to
the Trustee:


 


84

















 


(1)           an Officers’
Certificate in form and substance reasonably satisfactory to the Trustee (which
must include the statements set forth in Section 13.03 hereof) stating
that, in the opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action have been
satisfied; and


 


(2)           an Opinion of
Counsel in form and substance reasonably satisfactory to the Trustee (which
must include the statements set forth in Section 13.03 hereof) stating
that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.


 


Section 13.03         Statements Required in
Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture 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; provided, that an issuer of an Opinion of Counsel can rely as
to matters of fact on an Officers’ Certificate or a certificate of a public
official.


 


Section 13.04         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 13.05         No Personal Liability of
Directors, Officers, Employees and Stockholders.


 


No director, officer, employee, incorporator or
stockholder of any Issuer or any Guarantor, as such, will have any liability
for any obligations of an Issuer or any Guarantor under the Units, the Notes,
this Indenture, the Note Guarantees, or for any claim based on, in respect of,
or by reason of, such obligations or their creation, except for any liability
of a stockholder of any Issuer or Guarantor which is an unlimited liability
company that may arise under applicable law governing such unlimited liability
company.  Each Holder by accepting a Unit
and/or a Note waives and releases all such liability.  The waiver and release are part of the consideration
for issuance of the Units and the Notes.


 


Section 13.06         Governing Law.


 


THE INTERNAL LAW OF THE STATE OF NEW YORK WILL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE NOTE
GUARANTEES WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.


 


Section 13.07         No Adverse Interpretation
of Other Agreements.


 


This Indenture may not be used to interpret any
other indenture, loan or debt agreement of the Company or its Subsidiaries or
of any other Person. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.


 


85














 


Section 13.08       Successors.


 


All agreements of each 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 10.06 hereof.


 


Section 13.09       Severability.


 


In case any provision in this Indenture or in the
Units or 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 13.10       Counterpart Originals.


 


The parties may sign any number of copies or
counterparts of this Indenture. Each signed copy or counterpart will be an
original, but all of them together represent the same agreement.


 


Section 13.11       Table of Contents, Headings, etc.


 


The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and will in no way modify or restrict any of the terms or provisions
hereof.


 


Section 13.12       Judgment Currency.


 


(1)           If
for the purpose of obtaining or enforcing judgment against the an Issuer or a
Guarantor in any court in any jurisdiction, it becomes necessary to convert
into any other currency (such other currency being hereinafter in this Section 13.12
referred to as the “Judgment Currency”)
an amount due in Canadian or United States dollars under this Indenture, the
conversion will be made at the rate of exchange prevailing on the Business Day
immediately preceding (i) the date of actual payment of the amount due, in
the case of any proceeding in the courts of the Province of Alberta or in the
courts of any other jurisdiction that will give effect to such conversion being
made on such date, or (ii) the date on which the judgment is given, in the
case of any proceeding in the courts of any other jurisdiction (the date as of
which such conversion is made pursuant to this Section 13.12(1) being
hereinafter in this Section 13.12 referred to as the “Judgment
Conversion Date”).


 


(2)           If,
in the case of any proceeding in the court of any jurisdiction referred to in Section 13.12(1),
there is a change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual payment of the amount due, the Company
will pay such additional amount (and, if applicable, such lesser amount) as may
be necessary to ensure that the amount paid in the Judgment Currency, when
converted at the rate of exchange prevailing on the date of payment, will
produce the amount of Canadian dollars or United States dollars, as the case
may be, which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the rate of exchange prevailing
on the Judgment Conversion Date.


 


(3)           Any
amount due from an Issuer or a Guarantor, as applicable, under the provisions
of Section 13.12(2) will be due as a separate debt and will not be
affected by judgment being obtained for any other amounts due under or in
respect of this Indenture.


 


(4)           The
term “rate of exchange” in this Section 13.12
means:


 


(a)           for a
conversion of Canadian dollars to the Judgment Currency, the reciprocal of the
official noon rate of exchange published by the Bank of Canada for the date in
question for the conversion of the Judgment Currency to Canadian dollars;


 


(b)           for a
conversion of United States dollars to the Judgment Currency when the Judgment
Currency is Canadian dollars, the official noon rate of exchange published by
the Bank of Canada for the date in question for the conversion of United States
dollars to Canadian dollars;


 


86

















 


(c)           if
a required rate is not so published by the Bank of Canada for any such date,
the spot rate quoted by the Trustee at approximately noon (New York time) on
that date in accordance with its normal practice for the applicable currency
conversion in the wholesale market.


 


Section 13.13       Interest Act (Canada).


 


Solely for the purposes of
the Interest Act (Canada) and without affecting the calculation of the amount
of interest owing on the Notes, whenever interest to be paid hereunder is to be
calculated on the basis of 360 days or any other period of time that is less
than a calendar year, the yearly rate of interest to which the rate determined
pursuant to such calculation is equivalent is the rate so determined multiplied
by the actual number of days in the calendar year in which the same is to be
ascertained and divided by 360 or such other number of days in such period, as
the case may be.


 


Section 13.14       Waiver of Jury Trial.


 


EACH OF THE ISSUERS, THE GUARANTORS AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE UNITS, THE NOTES OR THE TRANSACTION
CONTEMPLATED HEREBY.


 


Section 13.15       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 Units, the Notes, the Note Guarantees 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.


 


Section 13.16       Force Majeure.


 


In no event shall the
Trustee be responsible or liable for any failure or delay in the performance of
its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of God, and interruptions, loss or malfunctions of utilities or
communications services; it being understood that the Trustee shall use
reasonable efforts which are consistent with accepted practices in the banking
industry to resume performance as soon as practicable under the circumstances.


 


[Signatures
on following page]


 


87

















 


IN WITNESS HEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.


 


	
   

  	
  ISSUERS:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA
  ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
				



 


Signature
Page to Indenture


 

















 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE US, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE US FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE
  CANADA ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA FINANCE CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AECO
  GAS STORAGE PARTNERSHIP,

  
	
   

  	
   

  	
   

  
	
   

  	
  by
  Niska Gas Storage Canada ULC,

  
	
   

  	
  its
  managing partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 


Signature
Page to Indenture


 

















 


	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WILD
  GOOSE STORAGE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS TRANSPORT INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SALT
  PLAINS STORAGE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GP ALBERTA ULC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  ENERSTREAM
  AGENCY SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak

  
	
   

  	
   

  	
  Title:
  Vice President, General Counsel & Corporate Secretary 

  



 


Signature
Page to Indenture


 

















 


	
   

  	
  ACCESS
  GAS SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak

  
	
   

  	
   

  	
  Title:
  Vice President, General Counsel & Corporate Secretary 

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS
  GAS SERVICES (ALBERTA) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak

  
	
   

  	
   

  	
  Title:
  Vice President, General Counsel & Corporate Secretary 

  
	
   

  	
   

  	
   

  
	
   

  	
  ACCESS
  GAS SERVICES (ONTARIO) INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jason A. Dubchak

  
	
   

  	
   

  	
  Name:  Jason
  A. Dubchak

  
	
   

  	
   

  	
  Title:
  Vice President, General Counsel & Corporate Secretary 

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GS HOLDINGS I, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GS HOLDINGS II, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA GP, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 


Signature
Page to Indenture


 

















 


	
   

  	
  NISKA
  GAS STORAGE CANADA, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  by
  Niska Gas Storage Canada GP, LLC,

  
	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Darin T. Olson 

  
	
   

  	
   

  	
  Name:  Darin T. Olson 

  
	
   

  	
   

  	
  Title:  Chief Financial Officer

  



 


Signature
Page to Indenture


 

















 


	
   

  	
  THE BANK OF NEW YORK
  MELLON, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Laurence J. O’Brien 

  
	
   

  	
   

  	
  Name:  Laurence
  J. O’Brien 

  
	
   

  	
   

  	
  Title:  Vice President

  



 


Signature
Page to Indenture














 


EXHIBIT A1


 


[Face
of U.S. Note]


 


CUSIP/CINS              


 


8.875% Senior Notes due 2018


 


	
  No.

  	
   

  	
  $       *

  



 


Niska Gas Storage US, LLC and Niska Gas Storage US Finance Corp. promise to pay
to
                                       or
registered assigns, the principal sum of
                   DOLLARS
(or if different, 21.875% of the principal amount of the Unit to which this
Note is attached) on                         ,
20 .


 


Interest Payment Dates:  March 15 and September 15


 


Record Dates: 
March 1 and September 1


 


Dated: 
                                  ,
20     


 


 


	
   

  	
  NISKA
  GAS STORAGE US, LLC, as an Issuer 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US FINANCE CORP., as an Issuer 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the U.S. Notes referred to

in the within-mentioned Indenture:


 


	
  THE BANK OF NEW YORK MELLON, as Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  



 


A1-1

















 


[Back of U.S. Note]

8.875% Senior Notes due 2018


 


[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.  Niska Gas Storage US, LLC (“Niska US”), Niska Gas Storage US Finance Corp. (“U.S. Finco” and, together with Niska US,
the “U.S. Issuers”), promise to
pay or cause to be paid interest on the principal amount outstanding of this
U.S. Note at 8.875% per annum. The U.S. Issuers will pay interest, if any,
semi-annually in arrears on March 15 and September 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 U.S. Notes will accrue from
the most recent date on which interest has been paid or, if no interest has
been paid, from the date of issuance; provided that,
if this U.S. Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be September 15,
2010.  The U.S. Issuers will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal at a rate that is 1% higher than the then applicable interest
rate on the U.S. 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, if any (without regard to any applicable grace period),
at the same rate to the extent lawful.


 


Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.


 


(2)           METHOD OF PAYMENT.  The U.S. Issuers will pay interest on the
U.S. Notes (except defaulted interest), if any, to the Persons who are
registered Holders of U.S. Notes at the close of business on March 1or September 1
immediately preceding the Interest Payment Date, even if such U.S. Notes are
canceled after such 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 U.S. Notes will
be payable as to principal, premium, if any, and interest, if any, at the
office or agency of the Paying Agent and Registrar within the City and State of
New York, or, at the option of the U.S. Issuer, payment of 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, premium on, if any, and interest, if any, on all U.S.
Notes and all other U.S. Notes the Holders of which will have provided wire
transfer instructions to the U.S. Issuers 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 U.S. Issuers may change the Paying Agent
or Registrar without prior notice to the Holders of the U.S. Notes.  The U.S. Issuers or any of their Subsidiaries
may act as Paying Agent or Registrar.


 


(4)           INDENTURE.  The U.S. Issuers issued the U.S. Notes under
an Indenture, dated as of March 5, 2010 (the “Indenture”),
by and among the U.S. Issuers, Niska Gas Storage Canada ULC (“Niska Canada”) and Niska Gas Storage
Canada Finance Corp. (“Canadian Finco”
and, together with Niska Canada, the “Canadian
Issuers” and, together with the U.S. Issuers, the “Issuers”), the guarantors party
thereto and the Trustee. The terms of the U.S. Notes include those stated in
the Indenture.  The U.S. Notes are subject
to all such terms, and Holders are referred to the Indenture for a statement of
such terms.  To the extent any provision
of this U.S. Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.  Subject to Sections 2.02, 2.13, 4.09 and 4.12
thereof, the Indenture does not limit the aggregate principal amount of U.S.
Notes that may be issued thereunder.


 


A1-2

















 


(5)           OPTIONAL REDEMPTION.


 


(a)           At any time prior to March 15, 2013, the
Issuers may, at their joint option, on any one or more occasions redeem up to
35% of the aggregate principal amount of their respective Notes issued under
the Indenture as Units, upon not less than thirty (30) nor more than sixty (60)
days’ notice, at a redemption price equal to 108.875% of the principal amount
of the Notes redeemed, plus accrued and unpaid interest, if any, to the date of
redemption (subject to the rights of Holders of Notes on the relevant record
date to receive interest on the relevant interest payment date) with the net
cash proceeds of an Equity Offering by the Company; provided that:


 


(A)          at least 65% of the aggregate principal amount of
Notes originally issued under the Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and


 


(B)           the redemption occurs within ninety (90) days of the
date of the closing of such Equity Offering.


 


(b)           At any time prior to March 15, 2014, the
Issuers may, at their joint option, on any one or more occasions redeem all or
a part of the Notes as Units, upon not less than thirty (30) nor more than
sixty (60) days’ notice, at a redemption price equal to 100% of the principal
amount of the Notes redeemed, plus the Applicable Premium as of, and accrued
and unpaid interest to the date of redemption, subject to the rights of Holders
on the relevant record date to receive interest due on the relevant interest
payment date.


 


(c)           Except pursuant to the preceding paragraphs and
paragraph (7) below, the Notes will not be redeemable at the Issuers’
option prior to March 15, 2014.


 


(d)           On or after March 15, 2014, the Issuers may, at
their joint option, on any one or more occasions redeem all or a part of the
Notes as Units, upon not less than ten (10) nor more than sixty (60) days’
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest on the Notes redeemed, to the
applicable date of redemption, if redeemed during the twelve-month period
beginning on March 15 of the years indicated below, subject to the rights
of Holders on the relevant record date to receive interest on the relevant
interest payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.438

  	
  %

  
	
  2015

  	
   

  	
  102.219

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Unless an Issuer defaults in the payment of the redemption price,
interest will cease to accrue on the U.S. Notes or portions thereof called for
redemption on the applicable redemption date.


 


(6)           MANDATORY REDEMPTION.  The Issuers are not required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


(7)           REDEMPTION FOR CHANGES IN
WITHHOLDING TAXES.  If, as a result of:


 


(a)           any amendment to, or change in, the laws (or
regulations or rulings promulgated thereunder) of any Relevant Taxing
Jurisdiction which is announced and becomes effective after the date hereof (or, where a jurisdiction
in question does not become a Relevant Taxing Jurisdiction until a later date,
such later date); or


 


(b)           any amendment to, or change in, the official
application, official interpretation, official administration or official
assessing practices of the laws, regulations or rulings of any Relevant Taxing 


 


A1-3

















 


Jurisdiction which is
announced and becomes effective after the date hereof (or, where a jurisdiction
in question does not become a Relevant Taxing Jurisdiction until a later date,
such later date),


 


an
Issuer would be obligated to pay, on the next date for any payment and as a
result of that amendment or change, Additional Amounts or indemnification
payments as described in Section 4.19 with respect to the Relevant Taxing
Jurisdiction, then the Issuers may redeem all, but not less than all, of the
Units, at any time thereafter, upon not less than thirty (30)  nor more than sixty (60) days’ notice, at a
redemption price of 100% of their principal amount, plus accrued and unpaid
interest, if any, to the redemption date. 
Prior to the giving of any notice of redemption described in this
paragraph, an Issuer will deliver to the Trustee a written opinion of
independent legal counsel to such Issuer of recognized standing to the effect
that such Issuer has or will become obligated to pay such Additional Amounts or
indemnification payments as a result of a change, amendment, official
application, official interpretation, official administration or official assessing
practices described above.


 


An Issuer will publish a notice of any
optional redemption of the Units described above in accordance with the
provisions of the Indenture described in Section 3.04. No such notice of
redemption may be given more than 60 days before or 365 days after the Issuer
first becomes liable to pay any Additional Amount or indemnification payments.


 


(8)           REPURCHASE AT THE OPTION OF HOLDER.


 


(a)           If a Change of Control occurs, each Holder will have
the right to require the Issuers to jointly repurchase all or any part of that
Holder’s Notes as Units (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) pursuant to Section 4.15 of the Indenture (a “Change of Control Offer”). 
Any such repurchase of the Notes shall include the U.S. Notes and the
Canadian Notes on a pro rata basis based on the aggregate principal amount of
the Notes outstanding at the time of repurchase.  In the Change of Control Offer, the Issuers
will jointly offer the Holders a purchase price in cash equal to 101% of the aggregate
principal amount of Notes repurchased as Units, plus accrued and unpaid
interest, if any, on the Notes repurchased 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. 
Within fifteen (15) days following any Change of Control, the Issuers
will mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.


 


(b)           Following the occurrence of certain Asset Sales, the
Issuers may be required to offer to repurchase the Notes as Units as required
by the Indenture.


 


(9)           NOTICE OF REDEMPTION.  At least thirty (30) days but not more than
sixty (60) days before a redemption date, the Issuers 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 sixty (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 the Indenture pursuant to Articles 8 or 11 thereof. Units
consisting of Notes and portions of Notes selected will be in amounts of $2,000
or whole multiples of $1,000 in excess thereof; except that if all of the Notes
of a Holder are to be redeemed or purchased, the entire outstanding amount of
Notes held by such Holder shall be redeemed or purchased.  On or after the redemption dates, interest
ceases to accrue on the Notes or portions thereof cancelled for redemption.


 


(10)         DENOMINATIONS, TRANSFER, EXCHANGE.  The U.S. Notes are in registered form in
denominations of $437.50 and integral multiples of $218.75 in excess
thereof.  The transfer of U.S. Notes may
be registered and U.S. 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 U.S. Issuers may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture.  The U.S. Issuers need not exchange or
register the transfer of any U.S. Note or portion of a U.S. Note selected for
redemption, except for the unredeemed portion of any U.S. Note being redeemed
in part.  Also, the U.S. Issuers need not
exchange or register the transfer of any U.S. Notes for a period of 


 


A1-4

















 


fifteen (15) days before a
selection of U.S. Notes to be redeemed or during the period between a record
date and the next succeeding interest payment date.


 


(11)         PERSONS DEEMED OWNERS.  The registered Holder of a U.S. Note may be
treated as the owner of it for all purposes. Only registered Holders have
rights under the Indenture.


 


(12)         AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to the exceptions set forth in Section 9.02
of the Indenture, the Indenture, the U.S. Notes 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 Units (including
Additional Units, if any), voting as a single class, and, subject to Section 6.04
and 6.07 of the Indenture, any existing Default or Event of Default or
compliance with any provision of the Indenture, the U.S. 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 Units (including Additional
Units, if any), voting as a single class. 
Without the consent of any Holder of U.S. Notes, the Indenture, the U.S.
Notes or the Note Guarantees may be amended or supplemented as set forth in Section 9.01
of the Indenture.


 


(13)         DEFAULTS AND REMEDIES.  The U.S. Notes are subject to the Defaults
and Event of Defaults set forth in Section 6.01 of the Indenture.  The Holders of a majority in aggregate
principal amount of the then outstanding Units by notice to the Trustee may, on
behalf of all the Holders, rescind an acceleration or waive an existing Default
or Event of Default and its respective consequences under the Indenture except
a continuing Default or Event of Default in the payment of principal of,
premium on, if any, or interest, if any, on, the U.S. Notes (including in
connection with an offer to purchase). 
The U.S. Issuers are required to deliver to the Trustee annually a
statement regarding compliance with the Indenture pursuant to Section 4.04,
and the U.S. Issuers are required, upon becoming aware of any Default or Event
of Default, to deliver to the Trustee a statement specifying such Default or
Event of Default.


 


(14)         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.


 


(15)         NO RECOURSE AGAINST OTHERS.  No director, officer, employee, incorporator
or stockholder of the U.S. Issuers or any Guarantor, as such, will have any
liability for any obligations of the U.S. Issuers or the Guarantors under the
U.S. Notes, the Units, the Indenture, the Note Guarantees or for any claim
based on, in respect of, or by reason of, such obligations or their creation,
except for any liability of a stockholder of any Issuer or Guarantor which is
an unlimited liability company that may arise under applicable law governing
such unlimited liability company.  Each
Holder of U.S. Notes by accepting a U.S. Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the U.S. Notes.  The waiver may not be
effective to waive liabilities under the federal securities laws.


 


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


 


(17)         ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).


 


(18)         GOVERNING LAW. 
THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO
CONSTRUE THE INDENTURE, THIS NOTE AND THE NOTE GUARANTEES 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 U.S. Issuers will furnish to any Holder upon
written request and without charge a copy of the Indenture. Requests may be
made to:


 


A1-5

















 


Niska Gas Storage

2780 West Liberty Road

Gridley, CA 95948

Facsimile:  1-866-452-8832

Attention:  Chief Legal Officer


 


A1-6






 










 


EXHIBIT A2


 


[Face of Canadian Note]


 


CUSIP/CINS             


 


8.875% Senior Notes due 2018


 


	
  No.:

  	
   

  	
  $                 *

  



 


Niska Gas Storage Canada ULC and Niska Gas Storage
Canada Finance Corp. promise to pay to
                                   or
registered assigns, the principal sum of
                             DOLLARS
(or if different, 78.125% of the principal amount of the Unit to which this
Note is attached) on
                               ,
20   .


 


Interest Payment Dates:  March 15 and September 15


 


Record Dates: 
March 1 and September 1


 


Dated:
                        ,
20     


 


 


	
   

  	
  NISKA GAS STORAGE CANADA ULC, as an Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE CANADA FINANCE CORP., as an
  Issuer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


 


This is one of the Canadian Notes referred to

in the within-mentioned Indenture:


 


	
  THE BANK OF NEW YORK MELLON, as Trustee

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  	
   

  	
   

  	
   

  



 


A2-1

















 


[Back of Canadian Note]

8.875% Senior Notes due 2018


 


[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.  Niska Gas Storage Canada ULC (“Niska Canada”) and Niska Gas Storage
Canada Finance Corp. (“Canadian Finco”
and, together with Niska Canada, the “Canadian
Issuers”) promise to pay or cause to be paid interest on the
principal amount outstanding of this Canadian Note at 8.875% per annum.  The Canadian Issuers will pay interest, if
any, semi-annually in arrears on March 15 and September 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 Canadian Notes will accrue
from the most recent date on which interest has been paid or, if no interest
has been paid, from the date of issuance; provided that,
if this Canadian Note is authenticated between a record date referred to on the
face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided
further that the first Interest Payment Date shall be September 15,
2010.  The Canadian Issuers will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal at a rate that is 1% higher than the then applicable
interest rate on the Canadian 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, if any (without regard to any applicable
grace period), at the same rate to the extent lawful.


 


Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.


 


(2)           METHOD OF PAYMENT.  The Canadian Issuers will pay interest on the
Canadian Notes (except defaulted interest), if any, to the Persons who are
registered Holders of Canadian Notes at the close of business on March 1
or September 1 immediately preceding the Interest Payment Date, even if
such Canadian Notes are canceled after such 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
Canadian Notes will be payable as to principal, premium, if any, and interest,
if any, at the office or agency of the Paying Agent and Registrar within the
City and State of New York, or, at the option of the Canadian Issuers, payment
of 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, premium on, if any, and interest, if any, on all Canadian
Notes and all other Canadian Notes the Holders of which will have provided wire
transfer instructions to the Canadian Issuers 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 Canadian Issuers may change the Paying
Agent or Registrar without prior notice to the Holders of the Canadian
Notes.  The Canadian Issuers or any of
their Subsidiaries may act as Paying Agent or Registrar.


 


(4)           INDENTURE.  The Canadian Issuers issued the Canadian
Notes under an Indenture, dated as of March 5, 2010 (the “Indenture”), by and among the Canadian Issuers, Niska Gas Storage US, LLC (“Niska US”), Niska Gas Storage US Finance
Corp. (“U.S. Finco” and, together
with Niska US, the “U.S. Issuers”
and, together with the Canadian Issuers, the “Issuers”),
the guarantors party thereto and the Trustee. 
The terms of the Canadian Notes include those stated in the
Indenture.  The Canadian Notes are
subject to all such terms, and Holders are referred to the Indenture for a
statement of such terms. To the extent any provision of this Canadian Note
conflicts with the express provisions of the Indenture, the provisions 


 


A2-2

















 


of the Indenture shall
govern and be controlling.  Subject to
Sections 2.02, 2.13, 4.09 and 4.12 thereof, the Indenture does not limit the
aggregate principal amount of Canadian Notes that may be issued thereunder.


 


(5)           OPTIONAL REDEMPTION.


 


(a)           At any time prior to March 15, 2013, the
Issuers may, at their joint option, on any one or more occasions redeem up to
35% of the aggregate principal amount of their respective Notes issued under
the Indenture as Units, upon not less than thirty (30) nor more than sixty (60)
days’ notice, at a redemption price equal to 108.875% of the principal amount
of the Notes redeemed, plus accrued and unpaid interest, if any, to the date of
redemption (subject to the rights of Holders of Notes on the relevant record
date to receive interest on the relevant interest payment date) with the net
cash proceeds of an Equity Offering by the Company; provided that:


 


(A)          at least 65% of the aggregate principal amount of
Notes originally issued under the Indenture (excluding Notes held by the
Company and its Subsidiaries) remains outstanding immediately after the
occurrence of such redemption; and


 


(B)           the redemption occurs within ninety (90) days of the
date of the closing of such Equity Offering.


 


(b)           At any time prior to March 15, 2014, the
Issuers may, at their joint option, on any one or more occasions redeem all or
a part of the Notes as Units, upon not less than thirty (30) nor more than
sixty (60) days’ notice, at a redemption price equal to 100% of the principal
amount of the Notes redeemed, plus the Applicable Premium as of, and accrued and
unpaid interest to the date of redemption, subject to the rights of Holders on
the relevant record date to receive interest due on the relevant interest payment
date.


 


(c)           Except pursuant to the preceding paragraphs and
paragraph (7) below, the Notes will not be redeemable at the Issuers’
option prior to March 15, 2014.


 


(d)           On or after March 15, 2014, the Issuers may, at
their joint option, on any one or more occasions redeem all or a part of the
Notes as Units, upon not less than ten (10) nor more than sixty (60) days’
notice, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest on the Notes redeemed, to the
applicable date of redemption, if redeemed during the twelve-month period beginning
on March 15 of the years indicated below, subject to the rights of Holders
on the relevant record date to receive interest on the relevant interest
payment date:


 


	
  Year

  	
   

  	
  Percentage

  	
   

  
	
  2014

  	
   

  	
  104.438

  	
  %

  
	
  2015

  	
   

  	
  102.219

  	
  %

  
	
  2016 and thereafter

  	
   

  	
  100.000

  	
  %

  



 


Unless an Issuer defaults in
the payment of the redemption price, interest will cease to accrue on the Canadian
Notes or portions thereof called for redemption on the applicable redemption
date.


 


(6)           MANDATORY REDEMPTION.  The Issuers are not required to make
mandatory redemption or sinking fund payments with respect to the Notes.


 


(7)           REDEMPTION FOR CHANGES IN
WITHHOLDING TAXES.  If, as a result of:


 


(a)           any amendment to, or change in, the laws (or
regulations or rulings promulgated thereunder) of any Relevant Taxing
Jurisdiction which is announced and becomes effective after the date hereof 


 


A2-3

















 


(or, where a jurisdiction in question does not become
a Relevant Taxing Jurisdiction until a later date, such later date); or


 


(b)           any amendment to, or change in, the official
application, official interpretation, official administration or official
assessing practices of the laws, regulations or rulings of any Relevant Taxing
Jurisdiction which is announced and becomes effective after the date hereof
(or, where a jurisdiction in question does not become a Relevant Taxing
Jurisdiction until a later date, such later date),


 


an
Issuer would be obligated to pay, on the next date for any payment and as a
result of that amendment or change, Additional Amounts or indemnification
payments as described in Section 4.19 with respect to the Relevant Taxing
Jurisdiction, then the Issuers may redeem all, but not less than all, of the
Units, at any time thereafter, upon not less than thirty (30)  nor more than sixty (60) days’ notice, at a
redemption price of 100% of their principal amount, plus accrued and unpaid
interest, if any, to the redemption date. 
Prior to the giving of any notice of redemption described in this
paragraph, an Issuer will deliver to the Trustee a written opinion of
independent legal counsel to such Issuer of recognized standing to the effect
that such Issuer has or will become obligated to pay such Additional Amounts or
indemnification payments as a result of a change, amendment, official
application, official interpretation, official administration or official assessing
practices described above.


 


An Issuer will publish a notice of any
optional redemption of the Units described above in accordance with the provisions
of the Indenture described in Section 3.04. No such notice of redemption
may be given more than 60 days before or 365 days after the Issuer first
becomes liable to pay any Additional Amount or indemnification payments..


 


(8)           REPURCHASE AT THE OPTION OF HOLDER.


 


(a)           If a Change of Control occurs, each Holder will have
the right to require the Issuers to jointly repurchase all or any part of that
Holder’s Notes as Units (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) pursuant to Section 4.15 of the Indenture (a “Change of Control Offer”). 
Any such repurchase of the Notes shall include the U.S. Notes and the
Canadian Notes on a pro rata basis based on the aggregate principal amount of
the Notes outstanding at the time of repurchase.  In the Change of Control Offer, the Issuers
will jointly offer the Holders a purchase price in cash equal to 101% of the aggregate
principal amount of Notes repurchased as Units, plus accrued and unpaid
interest, if any, on the Notes repurchased 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. 
Within fifteen (15) days following any Change of Control, the Issuers
will mail a notice to each Holder setting forth the procedures governing the
Change of Control Offer as required by the Indenture.


 


(b)           Following the occurrence of certain Asset Sales, the
Issuers may be required to offer to repurchase the Notes as Units as required
by the Indenture.


 


(9)           NOTICE OF REDEMPTION.  At least thirty (30) days but not more than
sixty (60) days before a redemption date, the Issuers 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 sixty (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 the Indenture pursuant to Articles 8 or 11 thereof.  Units consisting of Notes and portions of
Notes selected will be in amounts of $2,000 or whole multiples of $1,000 in
excess thereof; except that if all of the Notes of a Holder are to be redeemed
or purchased, the entire outstanding amount of Notes held by such Holder shall
be redeemed or purchased.  On or after
the redemption dates, interest ceases to accrue on the Notes or portions
thereof cancelled for redemption.


 


(10)         DENOMINATIONS, TRANSFER, EXCHANGE.  The Canadian Notes are in registered form in
denominations of $1,562.50 and integral multiples of $781.25 in excess
thereof.  The transfer of Canadian Notes
may be registered and Canadian Notes may be exchanged as provided in the
Indenture. 


 


A2-4

















 


The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and the Canadian Issuers may require a Holder to pay any
taxes and fees required by law or permitted by the Indenture.  The Canadian Issuers need not exchange or
register the transfer of any Canadian Note or portion of a Canadian Note
selected for redemption, except for the unredeemed portion of any Canadian Note
being redeemed in part.  Also, the
Canadian Issuers need not exchange or register the transfer of any Canadian
Notes for a period of fifteen (15) days before a selection of Canadian Notes to
be redeemed or during the period between a record date and the next succeeding
interest payment date.


 


(11)         PERSONS DEEMED OWNERS.  The registered Holder of a Canadian Note may
be treated as the owner of it for all purposes. Only registered Holders have
rights under the Indenture.


 


(12)         AMENDMENT, SUPPLEMENT AND WAIVER.  Subject to the exceptions set forth in Section 9.02
of the Indenture, the Indenture, the Canadian Notes 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 Units (including
Additional Units, if any), voting as a single class, and, subject to Section 6.04
and 6.07 of the Indenture, any existing Default or Event of Default or
compliance with any provision of the Indenture, the Canadian 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 Units (including Additional
Units, if any), voting as a single class. 
Without the consent of any Holder of Canadian Notes, the Indenture, the
Canadian Notes or the Note Guarantees may be amended or supplemented as set
forth in Section 9.01 of the Indenture.


 


(13)         DEFAULTS AND REMEDIES.  The Canadian Notes are subject to the
Defaults and Event of Defaults set forth in Section 6.01 of the
Indenture.  The Holders of a majority in
aggregate principal amount of the then outstanding Units by notice to the
Trustee may, on behalf of all the Holders, rescind an acceleration or waive an
existing Default or Event of Default and its respective consequences under the
Indenture except a continuing Default or Event of Default in the payment of
principal of, premium on, if any, or interest, if any, on, the Canadian Notes
(including in connection with an offer to purchase).  The Canadian Issuers are required to deliver
to the Trustee annually a statement regarding compliance with the Indenture
pursuant to Section 4.04, and the Canadian Issuers are required, upon
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.


 


(14)         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.


 


(15)         NO RECOURSE AGAINST OTHERS.  No director, officer, employee, incorporator
or stockholder of the Canadian Issuers or any Guarantor, as such, will have any
liability for any obligations of the Canadian Issuers or the Guarantors under
the Canadian Notes, the Units, the Indenture, the Note Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation, except for any liability of a stockholder of any Issuer or Guarantor
which is an unlimited liability company that may arise under applicable law
governing such unlimited liability company. 
Each Holder of Canadian Notes by accepting a Canadian Note waives and
releases all such liability. The waiver and release are part of the consideration
for issuance of the Canadian Notes.  The
waiver may not be effective to waive liabilities under the federal securities
laws.


 


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


 


(17)         ABBREVIATIONS.  Customary abbreviations may be used in the
name of a Holder or an assignee, such as: 
TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT
TEN (= joint tenants with right of survivorship and not as tenants in common),
CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


A2-5

















 


(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 NOTE GUARANTEES
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 Canadian Issuers will furnish to any Holder upon
written request and without charge a copy of the Indenture. Requests may be
made to:


 


Niska Gas Storage

2780 West Liberty Road

Gridley, CA 95948

Facsimile:  1-866-452-8832

Attention:  Chief Legal Officer


 


A2-6














EXHIBIT A3


 


NISKA GAS STORAGE US, LLC,


NISKA GAS STORAGE US FINANCE
CORP.,


NISKA GAS STORAGE CANADA
ULC,


and


NISKA
GAS STORAGE CANADA FINANCE CORP


 


Units


 


	
  No.

  	
  Certificate for
  $                          principal amount of Units [Insert the following
  language in the Global Units: or such other principal amount as
  shall be set forth in the Schedule of Exchanges of Interests in the Global
  Unit attached hereto]

  
	
   

  
	
   

  



 


CUSIP/CINS


 


Each $1,000 in principal amount of Units consists of
$218.75 principal amount of the 8.875% Senior Notes due 2018 issued by Niska Gas Storage US, LLC and Niska Gas Storage
US Finance Corp. and $781.25 principal amount of the 8.875% Senior
Notes due 2018 issued by Niska Gas Storage Canada ULC and Niska Gas Storage Canada Finance Corp. attached
hereto.


 


THE NOTES EVIDENCED BY THIS CERTIFICATE ARE
INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS
OF $218.75 PRINCIPAL AMOUNT OF THE U.S. NOTES AND $781.25 PRINCIPAL AMOUNT OF
THE CANADIAN NOTES (TOGETHER, THE “NOTES”). THE
NOTES MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, AND MAY BE
TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE OTHER NOTES THAT ARE PART OF
THE UNIT.


 


[Insert the Regulation S
Temporary Global Unit Legend, if applicable pursuant to the provisions of the
Indenture]


 


INDENTURE.  The Issuers
issued the Units under an Indenture, dated as of March 5, 2010 (the “Indenture”), by and among the Niska Gas Storage US, LLC (“Niska US”), Niska Gas Storage US Finance Corp. (together
with Niska US, the “U.S. Issuers”),
Niska Gas Storage Canada ULC (“Niska Canada”)
and Niska Gas Storage Canada Finance Corp. (together with the U.S.
Issuers and Niska Canada, the “Issuers”), the
guarantors party thereto and The Bank of New York Mellon, as trustee (the “Trustee”).


 


CUSIP NUMBERS. 
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers have caused CUSIP numbers to be
printed on the Units, 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 Units or as contained in any notice of redemption, and reliance
may be placed only on the other identification numbers placed thereon.


 


[Insert the Global Unit Legend,
if applicable pursuant to the provisions of the Indenture]


 


[Insert the Private Placement
Legend, if applicable pursuant to the provisions of the Indenture]


 


 


A3-1

















 


Dated:
                        ,
20


 


	
   

  	
  NISKA
  GAS STORAGE US, LLC, as an Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US FINANCE CORP., as an Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA ULC, as an Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA FINANCE CORP., as an Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


This is one of the Units referred to


in the within-mentioned Indenture:


 


	
  THE
  BANK OF NEW YORK MELLON, as Trustee

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Authorized Signatory

  	
   

  
			



 


A3-2

















 


ASSIGNMENT
FORM


 


To assign this Unit, fill in
the form below:


 


	
  (I) or (we) assign
  and transfer this Unit 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 Unit on the books of the Issuers. The agent may substitute
another to act for him.


 


	
  Date:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Your signature:

  	
   

  
	
   

  	
   

  	
  (Sign
  exactly as your name appears on the face of this Unit)

  
	
   

  	
   

  	
   

  
	
  Signature
  Guarantee*:

  	
   

  	
   

  	
   

  
						



 






*              Participant in a recognized
Signature Guarantee Medallion Program (or other signature guarantor acceptable
to the Trustee).


 


A3-3

















 


OPTION
OF HOLDER TO ELECT PURCHASE


 


If you want to elect to have this Unit purchased by
the Issuers pursuant to Section 4.10 or Section 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 Unit
purchased by the Issuers 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 Unit)

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax Identification No.:

  	
   

  
	
   

  	
   

  	
   

  
	
  Signature Guarantee*:

  	
   

  	
   

  	
   

  
							



 






*              Participant
in a recognized Signature Guarantee Medallion Program (or other signature
guarantor acceptable to the Trustee).


 


A3-4

















 


SCHEDULE
OF EXCHANGES OF INTERESTS IN THE GLOBAL UNIT


 


The following exchanges of a part of this Global
Unit for an interest in another Global Unit or for a Definitive Unit, or
exchanges of a part of another


 


	
  Date of Exchange

  	
   

  	
  Amount of

  decrease

  in Principal

  Amount

  at maturity of

  this Global Unit

  	
   

  	
  Amount of
  increase

  in Principal

  Amount

  at maturity of

  this Global Unit

  	
   

  	
  Principal
  Amount

  at

  maturity of this

  Global Unit following

  such decrease

  (or increase)

  	
   

  	
  Signature
  of

  authorized officer

  of Trustee or

  Custodian

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[Insert the U.S. Note, pursuant
to the provisions of the Indenture]


 


[Insert the Canadian Note,
pursuant to the provisions of the Indenture]


 


A3-5














EXHIBIT B


 


FORM OF
CERTIFICATE OF TRANSFER


 


Niska Gas Storage US, LLC


Niska Gas Storage US Finance Corp.


Niska Gas Storage Canada ULC


Niska Gas Storage Canada Finance Corp.


c/o Niska Gas Storage


2780 West Liberty Road


Gridley, CA 95948


Facsimile: 
1-866-452-8832


Attention: 
Chief Legal Officer


 


The Bank of New York Mellon


101 Barclay Street — Floor 8W


New York, NY 
10286


Facsimile No.:  (212) 815-5704


Attention: Laurence J. O’Brien


 


Re:          Units Comprised of $218.75
Principal Amount of 8.875% Senior Notes due 2018 issued by Niska Gas Storage US, LLC and Niska Gas Storage
US Finance Corp. and $781.25 Principal Amount of 8.875% Senior Notes
due 2018 issued by Niska Gas Storage Canada ULC and Niska Gas Storage Canada Finance Corp.


 


Reference is hereby made to the Indenture, dated as
of March 5, 2010 (the “Indenture”), by
and among Niska Gas
Storage US, LLC (“Niska US”),
Niska Gas Storage US Finance Corp. (“U.S.
Finco” and, together with Niska US, the “U.S. Issuers”), Niska Gas Storage Canada ULC (“Niska Canada”) and Niska Gas Storage
Canada Finance Corp. (“Canadian Finco”
and, together with Niska Canada, the “Canadian
Issuers” and, together with the U.S. Issuers, the “Issuers”), the guarantors party
thereto 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 Unit[s] or interest in such Unit[s] specified
in Annex A hereto, in [in the amount of                   ][the principal amount of
$          ] in such Unit[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 Unit or a Restricted
Definitive Unit 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 Unit is being transferred to a Person that the
Transferor reasonably believes is purchasing the beneficial interest or
Definitive Unit 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 Unit will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the 144A Global Unit and/or the Restricted Definitive Unit and in the Indenture
and the Securities Act.


 


2.             o  Check if Transferee will
take delivery of a beneficial interest in the Regulation S  Temporary Global Unit, the Regulation S
Permanent Global Unit or a Restricted Definitive Unit pursuant to Regulation S.  The Transfer is being effected pursuant to
and in accordance with Rule 903 or Rule 904 under the 


 


B-1

















 


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 Unit will be subject to the restrictions on Transfer enumerated
in the Private Placement Legend printed on the Regulation S Permanent Global Unit,
the Regulation S Temporary Global Unit and/or the Restricted Definitive Unit
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 Unit
or a Restricted Definitive Unit 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 Units and Restricted Definitive Units 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 applicable to beneficial interests in a Restricted Global
Unit or Restricted Definitive Units 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 Units 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
Unit will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the IAI Global Unit and/or the Restricted
Definitive Units and in the Indenture and the Securities Act.


 


4.             o  Check if Transferee will
take delivery of a beneficial interest in an Unrestricted Global Unit or of an
Unrestricted Definitive Unit.


 


(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 Unit will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Units, on Restricted
Definitive Units and in the Indenture.


 


B-2

















 


(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 Unit will
no longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Units, on Restricted
Definitive Units 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 Unit will
not be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Units or Restricted
Definitive Units and in the Indenture.


 


This certificate and the statements contained herein
are made for your benefit and the benefit of the Issuers.


 


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  
					



 


B-3

















 


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 Unit (CUSIP     ), or


 


(ii)           o  Regulation S Global Unit (CUSIP      ), or


 


(iii)          o  IAI Global Unit (CUSIP      ); or


 


(b)           o  Restricted Definitive Unit.


 


2.             After the Transfer the Transferee will hold: [CHECK
ONE]


 


(a)           o  a beneficial interest in the:


 


(i)            o  144A Global Unit (CUSIP       ), or


 


(ii)           o  Regulation S Global Unit (CUSIP      ), or


 


(iii)          o  IAI Global Unit (CUSIP      ); or


 


(iv)          o  Unrestricted Global Unit (CUSIP      ); or


 


(b)           o  a Restricted Definitive Unit; or


 


(c)           o  an Unrestricted Definitive Unit,


 


in
accordance with the terms of the Indenture.


 


B-4

















EXHIBIT C


 


FORM OF
CERTIFICATE OF EXCHANGE


 


Niska Gas Storage US, LLC


Niska Gas Storage US Finance Corp.


Niska Gas Storage Canada ULC


Niska Gas Storage Canada Finance Corp.


c/o Niska Gas Storage


2780 West Liberty Road


Gridley, CA 95948


Facsimile: 
1-866-452-8832


Attention: 
Chief Legal Officer


 


The Bank of New York Mellon


101 Barclay Street — Floor 8W


New York, NY 
10286


Facsimile No.:  (212) 815-5704


Attention: Laurence J. O’Brien


 


Re:          Units Comprised of $218.75
Principal Amount of 8.875% Senior Notes due 2018 issued by Niska Gas Storage US, LLC and Niska Gas Storage
US Finance Corp. and $781.25 Principal Amount of 8.875% Senior Notes
due 2018 issued by Niska Gas Storage Canada ULC and Niska Gas Storage Canada Finance Corp.


 


(CUSIP
[        ])


 


Reference is hereby made to the Indenture, dated as
of March 5, 2010 (the “Indenture”), by
and among Niska Gas
Storage US, LLC (“Niska US”),
Niska Gas Storage US Finance Corp. (“U.S.
Finco” and, together with Niska US, the “U.S. Issuers”), Niska Gas Storage Canada ULC (“Niska Canada”) and Niska Gas Storage
Canada Finance Corp. (“Canadian Finco”
and, together with Niska Canada, the “Canadian
Issuers” and, together with the U.S. Issuers, the “Issuers”), the guarantors party
thereto 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 Unit[s] or interest in such Unit[s] specified
herein, in [the amount of           ][the
principal amount of $        ] in such
Unit[s] or interests (the “Exchange”).  In connection with the Exchange, the Owner
hereby certifies that:


 


1.             Exchange
of Restricted Definitive Units or Beneficial Interests in a Restricted Global
Units for Unrestricted Definitive Units or Beneficial Interests in an
Unrestricted Global Unit


 


(a)           o  Check if Exchange is from
beneficial interest in a Restricted Global Unit to beneficial interest in an
Unrestricted Global Unit.  In
connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Unit for a beneficial interest in an Unrestricted Global Unit 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 Units 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 Unit is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.


 


(b)           o  Check if Exchange is from
beneficial interest in a Restricted Global Unit to Unrestricted Definitive Unit.
In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Unit for an Unrestricted Definitive Unit, the Owner hereby
certifies (i) the Definitive Unit is being acquired for the Owner’s 


 


C-1

















 


own account without
transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Units 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 Unit 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 Unit to beneficial interest in an Unrestricted Global
Unit.  In connection with the
Owner’s Exchange of a Restricted Definitive Unit for a beneficial interest in
an Unrestricted Global Unit, 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 Units 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 Unit to Unrestricted Definitive Unit.  In connection with the Owner’s Exchange of a
Restricted Definitive Unit for an Unrestricted Definitive Unit, the Owner
hereby certifies (i) the Unrestricted Definitive Unit 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 Units 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 Unit is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.


 


2.             Exchange
of Restricted Definitive Units or Beneficial Interests in Restricted Global
Units for Restricted Definitive Units or Beneficial Interests in Restricted
Global Units


 


(a)           o  Check if Exchange is from
beneficial interest in a Restricted Global Unit to Restricted Definitive Unit.  In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Unit for a Restricted Definitive
Unit with an equal principal amount, the Owner hereby certifies that the
Restricted Definitive Unit 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 Unit issued will continue to be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Definitive Unit and in the Indenture and the Securities Act.


 


(b)           o  Check if Exchange is from
Restricted Definitive Unit to beneficial interest in a Restricted Global Unit.  In connection with the Exchange of the Owner’s
Restricted Definitive Unit for a beneficial interest in the [CHECK ONE] o 144A Global
Unit, o Regulation S
Global Unit, o IAI Global Unit 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 Units 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 Unit 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 Issuers.


 


 


	
   

  	
   

  
	
   

  	
  [Insert
  Name of Transferor]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
   

  
					



 


C-2














 


EXHIBIT D


 


FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR


 


Niska Gas Storage US, LLC


Niska Gas Storage US Finance Corp.


Niska Gas Storage Canada ULC


Niska Gas Storage Canada Finance Corp.

c/o Niska Gas Storage

2780 West Liberty Road

Gridley, CA 95948

Facsimile:  1-866-452-8832

Attention:  Chief Legal Officer


 


 


The Bank of New York Mellon

101 Barclay Street — Floor 8W

New York, NY  10286

Facsimile No.: (212) 815-5704

Attention: Laurence J. O’Brien


 


Re:          Units Comprised of $218.75
Principal Amount of 8.875% Senior Notes due 2018 issued by Niska Gas Storage US, LLC and Niska Gas Storage
US Finance Corp. and $781.25 Principal Amount of 8.875% Senior Notes
due 2018 issued by Niska Gas Storage Canada ULC and Niska Gas Storage Canada Finance Corp.


 


Reference is hereby made to the Indenture, dated as
of March 5, 2010 (the “Indenture”), by
and among Niska Gas
Storage US, LLC (“Niska US”),
Niska Gas Storage US Finance Corp. (“U.S.
Finco” and, together with Niska US, the “U.S. Issuers”), Niska Gas Storage Canada ULC (“Niska Canada”) and Niska Gas Storage
Canada Finance Corp. (“Canadian Finco”
and, together with Niska Canada, the “Canadian
Issuers” and, together with the U.S. Issuers, the “Issuers”), the guarantors party
thereto 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 Unit, or


 


(b)           o  a Definitive Unit,


 


we confirm that:


 


1.             We understand
that any subsequent transfer of the Units 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 Units 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 Units have not been registered under the
Securities Act, and that the Units 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 Units 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), (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 the Registrar and to the Company a signed
letter substantially in the form of 


 


D-1

















 


this letter and, if such
transfer is in respect of a principal amount of Units, at the time of transfer
of less than $250,000, an Opinion of Counsel in 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 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 Unit or beneficial interest in
a Global Unit 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 Units or beneficial interest therein, we
will be required to furnish to the Registrar and the Issuers such
certifications, legal opinions and other information as the Registrar and the
Issuers may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions.  We further
understand that the Units 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 Units, 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 Units 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.


 


The Registrar and the Issuers 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 Transferor]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
   

  	
  Title:

  
	
  Dated:

  	
   

  	
   

  	
   

  	
   

  



 


D-2

















EXHIBIT E


 


[FORM OF NOTATION OF GUARANTEE]


 


For value received, each Guarantor (which term
includes any successor Person under the Indenture) has, jointly and severally,
unconditionally guaranteed, to the extent set forth in the Indenture and
subject to the provisions in the Indenture, dated as of March 5, 2010 (the
“Indenture”), by and among Niska Gas Storage US, LLC (“Niska US”), Niska Gas Storage US Finance
Corp. (“U.S. Finco” and, together
with Niska US, the “U.S. Issuers”),
Niska Gas Storage Canada ULC (“Niska Canada”)
and Niska Gas Storage Canada Finance Corp. (“Canadian
Finco” and, together with Niska Canada, the “Canadian Issuers” and, together with the
U.S. Issuers, the “Issuers”), the
guarantors party thereto and The Bank of New York Mellon, as Trustee, (a) the
due and punctual payment of the principal of, premium on, if any, interest, if
any, on the U.S. Notes and the Canadian Notes, whether at maturity, by acceleration,
redemption or otherwise, the due and punctual payment of interest on overdue
principal of, premium on, if any, interest, if any, on the U.S. Notes and the
Canadian Notes, if any, if lawful, and the due and punctual performance of all
other obligations of the Issuer 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 U.S. Notes or any Canadian 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 Guarantors
to the Holders of U.S. Notes and the Canadian Notes and to the Trustee pursuant
to the Note 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 Note Guarantee. Capitalized terms used but not defined herein have
the meanings given to them in the Indenture.


 


[SIGNATURE
PAGE TO FOLLOW]


 


E-1

















 


	
   

  	
  NISKA
  GAS STORAGE US, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US FINANCE CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA ULC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA FINANCE CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  AECO GAS STORAGE
  PARTNERSHIP,

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by Niska Gas Storage
  Canada ULC,

  
	
   

  	
  its managing partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  



 


E-2

















 


	
   

  	
  NISKA GAS STORAGE LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  WILD GOOSE STORAGE, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS TRANSPORT INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  SALT PLAINS STORAGE,LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA GP ALBERTA ULC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ENERSTREAM AGENCY
  SERVICES INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  



 


E-3

















 


	
   

  	
  ACCESS GAS SERVICES
  INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ACCESS GAS SERVICES
  (ALBERTA) INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ACCESS GAS SERVICES
  (ONTARIO) INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA GS HOLDINGS I, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA GS HOLDINGS II, L.P.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA GAS STORAGE
  CANADA GP, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  



 


E-4

















 


	
   

  	
  NISKA GAS STORAGE
  CANADA, L.P.  

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  by Niska Gas Storage
  Canada GP, LLC, 

  
	
   

  	
  its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  [           ]

  
	
   

  	
   

  	
  Title:

  	
  [           ]

  



 


E-5






 










 


EXHIBIT F


 


[FORM OF SUPPLEMENTAL INDENTURE TO BE
DELIVERED BY SUBSEQUENT GUARANTORS]


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated
as of                       , among 
                 (the “Guaranteeing
Subsidiary”), a subsidiary of [  
                        ] (or its
permitted successor), a
[                       ]
(the “Company”), the Company, 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 Issuers have heretofore executed and
delivered to the Trustee an indenture (the “Indenture”),
dated as of March 5, 2010 providing for the issuance of $800,000,000
aggregate principal amount of Units (each a “Unit”
and, collectively, the “Units”), each
$1,000 of Units consisting of $218.75 principal amount of 8.875% Senior Notes
due 2018 (the “U.S. Notes”) of Niska Gas Storage US, LLC and Niska Gas Storage
US Finance Corp and $781.25 principal amount of 8.875% Senior Notes
due 2018 (the “Canadian Notes” and, together
with the U.S. Notes, the “Notes”) of Niska Gas Storage Canada ULC and Niska
Gas Storage Canada Finance Corp.;


 


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 U.S. Issuers’ and Canadian Issuers’
Obligations under the U.S. Notes and the Canadian Notes and the Indenture on
the terms and conditions set forth herein (the “Note
Guarantee”); and


 


WHEREAS, pursuant to Section 9.01 of the
Indenture, the Trustee is authorized to execute and deliver this 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 and the Trustee mutually covenant and
agree for the equal and ratable benefit of the Holders of the Notes as follows:


 


1.             CAPITALIZED
TERMS.  Capitalized terms used herein
without definition shall have the meanings assigned to them in the Indenture.


 


2.             AGREEMENT TO
GUARANTEE.  The Guaranteeing Subsidiary
hereby agrees to provide an unconditional Guarantee on the terms and subject to
the conditions set forth in the Note Guarantee and in the Indenture including
but not limited to Article 10 thereof.


 


3.             NO RECOURSE
AGAINST OTHERS.  No past, present or
future director, officer, employee, incorporator or stockholder or agent of the
Issuers or any Guarantor, as such, shall have any liability for any obligations
of an Issuer or the Guarantors under the Notes, this Indenture, the Note
Guarantees or any Supplemental Indenture for any claim based on, in respect of,
or by reason of, such obligations or their creation, except for any liability
of a stockholder of any Issuer or Guarantor which is an unlimited liability
company that may arise under applicable law governing such unlimited liability
company.  Each Holder by accepting a Note
waives and releases all such liability. 
The waiver and release are part of the consideration for issuance of the
Notes.  The 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 SHALL 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.


 


F-1

















 


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 and the Issuers.


 


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:


 


 


	
   

  	
  [GUARANTEEING
  SUBSIDIARY]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US, LLC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE US FINANCE CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA ULC

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  NISKA
  GAS STORAGE CANADA FINANCE CORP.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [                         ]

  
	
   

  	
  as
  Guarantors

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


F-3

















 


	
   

  	
  THE
  BANK OF NEW YORK MELLON, as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


F-4