exv4w1






Exhibit 4.1




Execution Copy




 





HOLLY CORPORATION




AND EACH OF THE GUARANTORS PARTY HERETO




9.875% SENIOR NOTES DUE 2017




 






INDENTURE




Dated as of June 10, 2009




 






U.S. Bank Trust National Association




Trustee




 






 
















 








CROSS-REFERENCE TABLE*




	 	 	 
	Trust Indenture	 	 
	Act Section	 	Indenture Section
	310(a)(1)
	 	7.10
	(a)(2)
	 	7.10
	(a)(3)
	 	N.A.
	(a)(4)
	 	N.A.
	(a)(5)
	 	7.10
	(b)
	 	7.10
	(c)
	 	N.A.
	311(a)
	 	7.11
	(b)
	 	7.11
	(c)
	 	N.A.
	312(a)
	 	2.05
	(b)
	 	12.03
	(c)
	 	12.03
	313(a)
	 	7.06
	(b)(2)
	 	7.06; 7.07
	(c)
	 	7.06; 12.02
	(d)
	 	7.06
	314(a)
	 	4.03;12.02; 12.05
	(c)(1)
	 	12.04
	(c)(2)
	 	12.04
	(c)(3)
	 	N.A.
	(e)
	 	12.05
	(f)
	 	N.A.
	315(a)
	 	7.01
	(b)
	 	7.05; 12.02
	(c)
	 	7.01
	(d)
	 	7.01
	(e)
	 	6.11
	316(a) (last sentence)
	 	2.09
	(a)(1)(A)
	 	6.05
	(a)(1)(B)
	 	6.04
	(a)(2)
	 	N.A.
	(b)
	 	6.07
	(c)
	 	2.12
	317(a)(1)
	 	6.08
	(a)(2)
	 	6.09
	(b)
	 	2.04
	318(a)
	 	12.01
	(b)
	 	N.A.
	(c)
	 	12.01





 
 



N.A. means not applicable.


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















 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	ARTICLE 1

	DEFINITIONS AND INCORPORATION

	BY REFERENCE

	 
	 	 	 	 
	Section 1.01 Definitions

	 	 	1	 
	Section 1.02 Other Definitions

	 	 	26	 
	Section 1.03 Incorporation by Reference of Trust Indenture Act

	 	 	26	 
	Section 1.04 Rules of Construction

	 	 	27	 
	 
	 	 	 	 
	ARTICLE 2

	THE NOTES

	 
	 	 	 	 
	Section 2.01 Form and Dating

	 	 	27	 
	Section 2.02 Execution and Authentication

	 	 	28	 
	Section 2.03 Registrar and Paying Agent

	 	 	28	 
	Section 2.04 Paying Agent to Hold Money in Trust
	 	 	29	 
	Section 2.05 Holder Lists

	 	 	29	 
	Section 2.06 Transfer and Exchange

	 	 	29	 
	Section 2.07 Replacement Notes

	 	 	41	 
	Section 2.08 Outstanding Notes

	 	 	42	 
	Section 2.09 Treasury Notes

	 	 	42	 
	Section 2.10 Temporary Notes

	 	 	42	 
	Section 2.11 Cancellation

	 	 	42	 
	Section 2.12 Defaulted Interest

	 	 	43	 
	 
	 	 	 	 
	ARTICLE 3

	REDEMPTION AND PREPAYMENT

	 
	 	 	 	 
	Section 3.01 Notices to Trustee

	 	 	43	 
	Section 3.02 Selection of Notes to Be Redeemed

	 	 	43	 
	Section 3.03 Notice of Redemption

	 	 	44	 
	Section 3.04 Effect of Notice of Redemption

	 	 	45	 
	Section 3.05 Deposit of Redemption or Purchase Price

	 	 	45	 
	Section 3.06 Notes Redeemed or Purchased in Part

	 	 	45	 
	Section 3.07 Optional Redemption

	 	 	45	 
	Section 3.08 Mandatory Redemption

	 	 	46	 
	Section 3.09 Offer to Purchase by Application of Excess Proceeds

	 	 	46	 
	 
	 	 	 	 
	ARTICLE 4

	COVENANTS

	 
	 	 	 	 
	Section 4.01 Payment of Notes

	 	 	48	 
	Section 4.02 Maintenance of Office or Agency

	 	 	48	 
	Section 4.03 Reports

	 	 	48	 
	Section 4.04 Compliance Certificate

	 	 	49	 
	Section 4.05 Taxes

	 	 	50	 
	Section 4.06 Stay, Extension and Usury Laws

	 	 	50	 
	Section 4.07 Restricted Payments

	 	 	50	 
	Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries

	 	 	53	 
	Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock

	 	 	55	 
















 






	 	 	 	 	 
	 	 	Page
	Section 4.10 Asset Sales

	 	 	56	 
	Section 4.11 Transactions with Affiliates

	 	 	58	 
	Section 4.12 Liens

	 	 	59	 
	Section 4.13 Line of Business

	 	 	60	 
	Section 4.14 Corporate Existence

	 	 	60	 
	Section 4.15 Offer to Repurchase Upon Change of Control

	 	 	60	 
	Section 4.16 Sale-and-Leaseback Transactions

	 	 	62	 
	Section 4.17 Payments for Consent

	 	 	62	 
	Section 4.18 Additional Guarantors

	 	 	62	 
	Section 4.19 Changes in Covenants when Notes Rated Investment Grade

	 	 	63	 
	 
	 	 	 	 
	ARTICLE 5

	SUCCESSORS

	 
	 	 	 	 
	Section 5.01 Merger, Consolidation, or Sale of Assets

	 	 	64	 
	Section 5.02 Successor Corporation 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

	 	 	67	 
	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

	 	 	68	 
	Section 6.09 Trustee May File Proofs of Claim

	 	 	69	 
	Section 6.10 Priorities

	 	 	69	 
	Section 6.11 Undertaking for Costs

	 	 	69	 
	 
	 	 	 	 
	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

	 	 	71	 
	Section 7.05 Notice of Defaults

	 	 	71	 
	Section 7.06 Reports by Trustee to Holders of the Notes

	 	 	72	 
	Section 7.07 Compensation and Indemnity

	 	 	72	 
	Section 7.08 Replacement of Trustee

	 	 	73	 
	Section 7.09 Successor Trustee by Merger, etc

	 	 	74	 
	Section 7.10 Eligibility; Disqualification

	 	 	74	 
	Section 7.11 Preferential Collection of Claims Against Company

	 	 	74	 
	 
	 	 	 	 
	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

	 	 	75	 
	Section 8.04 Conditions to Legal or Covenant Defeasance

	 	 	75	 






ii









 






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

	 	 	76	 
	Section 8.06 Repayment to Company

	 	 	77	 
	Section 8.07 Reinstatement

	 	 	77	 
	 
	 	 	 	 
	ARTICLE 9

	AMENDMENT, SUPPLEMENT AND WAIVER

	 
	 	 	 	 
	Section 9.01 Without Consent of Holders of Notes

	 	 	78	 
	Section 9.02 With Consent of Holders of Notes

	 	 	78	 
	Section 9.03 Compliance with Trust Indenture Act

	 	 	80	 
	Section 9.04 Revocation and Effect of Consents

	 	 	80	 
	Section 9.05 Notation on or Exchange of Notes

	 	 	80	 
	Section 9.06 Trustee to Sign Amendments, etc

	 	 	80	 
	 
	 	 	 	 
	ARTICLE 10

	SUBSIDIARY GUARANTEES

	 
	 	 	 	 
	Section 10.01. Guarantee

	 	 	80	 
	Section 10.02. Limitation on Guarantor Liability

	 	 	81	 
	Section 10.03. Execution and Delivery of Subsidiary Guarantee

	 	 	82	 
	Section 10.04. Guarantors May Consolidate, etc., on Certain Terms

	 	 	82	 
	Section 10.05. Releases

	 	 	83	 
	 
	 	 	 	 
	ARTICLE 11

	SATISFACTION AND DISCHARGE

	 
	 	 	 	 
	Section 11.01 Satisfaction and Discharge

	 	 	84	 
	Section 11.02 Application of Trust Money

	 	 	85	 
	 
	 	 	 	 
	ARTICLE 12

	MISCELLANEOUS

	 
	 	 	 	 
	Section 12.01 Trust Indenture Act Controls

	 	 	85	 
	Section 12.02 Notices

	 	 	85	 
	Section 12.03 Communication by Holders of Notes with Other Holders of Notes

	 	 	86	 
	Section 12.04 Certificate and Opinion as to Conditions Precedent

	 	 	87	 
	Section 12.05 Statements Required in Certificate or Opinion

	 	 	87	 
	Section 12.06 Rules by Trustee and Agents

	 	 	87	 
	Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders

	 	 	87	 
	Section 12.08 Payment Date Other Than a Business Day

	 	 	87	 
	Section 12.09 Governing Law

	 	 	88	 
	Section 12.10 No Adverse Interpretation of Other Agreements

	 	 	88	 
	Section 12.11 Successors

	 	 	88	 
	Section 12.12 Severability

	 	 	88	 
	Section 12.13 Counterpart Originals

	 	 	88	 
	Section 12.14 Table of Contents, Headings, etc

	 	 	88	 
	 
	 	 	 	 
	EXHIBITS

	 
	 	 	 	 
	Exhibit A FORM OF NOTE
	 	 	 	 
	Exhibit B FORM OF CERTIFICATE OF TRANSFER
	 	 	 	 
	Exhibit C FORM OF CERTIFICATE OF EXCHANGE
	 	 	 	 
	Exhibit D FORM OF CERTIFICATE OF ACQUIRING INSTITUTIONAL ACCREDITED
INVESTOR
	 	 	 	 






iii









 






	 	 	 	 	 
	 	 	Page
	Exhibit E FORM OF NOTATION OF GUARANTEE
	 	 	 	 
	Exhibit F FORM OF SUPPLEMENTAL INDENTURE
	 	 	 	 






iv









 





     INDENTURE dated as of June 10, 2009 among Holly Corporation, a Delaware corporation (the
“Company”), the Guarantors (as defined) and U.S. Bank Trust National Association, as trustee.



     The Company, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined) of the 9.875% Senior Notes due 2017
(the “Notes”):



ARTICLE 1

DEFINITIONS AND INCORPORATION

BY REFERENCE




Section 1.01 Definitions.




     “144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination
equal to the outstanding principal amount of the Notes 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
with or into or becomes a Subsidiary of such specified Person, whether or not such
Indebtedness is incurred in connection with, or in contemplation of, such other Person
merging with or into, or becoming a Subsidiary of, such specified Person, but excluding
Indebtedness which is extinguished, retired or repaid in connection with such Person merging
with or into or becoming a Subsidiary of such specific Person; and




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



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



     “Adjusted Net Assets” of a Guarantor at any date shall mean the amount by which the fair value
of the properties and assets of such Guarantor exceeds the total amount of liabilities, including
contingent liabilities (after giving effect to all other fixed and contingent liabilities incurred
or assumed on such date), but excluding liabilities under its Subsidiary Guarantee, of such
Guarantor at such date.



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



1









 





     “Asset Contribution” means the contribution of certain asphalt terminals and/or any related
logistics assets by the Company or one or more Guarantors to HEP or its Subsidiaries.



     “Asset Sale” means:




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




     (2) the issue or sale by the Company or any of its Restricted Subsidiaries of Equity
Interests of any Restricted Subsidiary (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); and




     (3) any Event of Loss,


whether, in the case of clause (1), (2) or (3), in a single transaction or a series of related
transactions, provided that such transaction or series of transactions (a) has a fair market value
in excess of $10.0 million or (b) results in the payment of net proceeds in excess of $10.0
million.




     Notwithstanding the preceding, the following transactions will not be deemed to be Asset
Sales:




     (1) any sale, assignment, lease, license, transfer, abandonment or other disposition of
(A) damaged, worn-out, unserviceable or other obsolete or excess equipment or other property
or (B) other property no longer necessary for the proper conduct of the business of the
Company or any of its Subsidiaries;




     (2) a disposition of assets by the Company to a Restricted Subsidiary of the Company or
by a Restricted Subsidiary of the Company to the Company or to another Restricted Subsidiary
of the Company;




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




     (4) the consummation of (A) any Permitted Investment or (B) any Restricted Payment that
is permitted by this Indenture;




     (5) any sale of inventory or hydrocarbons or other products (including crude oil and
refined products), in each case in the ordinary course of business of the Company’s or its
Restricted Subsidiaries’ operations;




     (6) the sale or other disposition of cash or Cash Equivalents, Hedging Obligations or
other financial instruments in the ordinary course of business;




     (7) the creation of a Permitted Lien and any disposition of assets or rights resulting
from the enforcement of any Permitted Lien;




     (8) surrender or waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind;



2









 






     (9) transactions with HEP or its Subsidiaries, other than sales of core refinery
assets, so long as with respect to such transactions the Company complies with the
provisions of Section 4.11 hereof; and




     (10) any disposition of defaulted receivables that arose in the ordinary course of
business for collection.



     “Attributable Indebtedness” in respect of a sale-and-leaseback transaction means, at the time
of determination, the present value of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such sale-and-leaseback transaction including any
period for which such lease has been extended or may, at the option of the lessor, be extended. As
used in the preceding sentence, “net rental payments” under any lease for any such period shall
mean the sum of rental and other payments required to be paid with respect to such period by the
lessee thereunder, excluding any amounts required to be paid by such lessee on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar charges. In the
case of any lease that is terminable by the lessee upon payment of penalty, such net rental payment
shall also include the amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so terminated. For
purposes of this definition, present value shall be calculated using a discount rate equal to the
rate of interest implicit in the subject transaction, determined in accordance with GAAP; provided,
however, that if such sale-and-leaseback transaction results in a Capital Lease Obligation, the
amount of Indebtedness represented thereby will be determined in accordance with the definition of
“Capital Lease Obligation” in this Indenture.



     “Bankruptcy Law” means Title 11, U.S. Code or any similar federal or state law for the relief
of debtors.



     “Board of Directors” means the board of directors of the Company or any committee thereof duly
authorized to act on behalf of such board.



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



     “Capital Lease Obligation” means an obligation that is required to be classified and accounted
for as a capital lease for financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be, at the time any determination thereof is to
be made, the amount of the liability in respect of a capital lease that would at such time be
required to be capitalized on a balance sheet 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, corporate stock;




     (2) in the case of a limited liability company or similar entity, any membership or
similar interest therein;




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




     (4) in the case of a partnership, partnership interests (whether general or limited);
and



3









 






     (5) 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 foregoing any debt securities convertible into, or exchangeable
for, Capital Stock, whether or not such debt securities include any right of participation
with Capital Stock.




     “Cash Equivalents” means:




     (1) securities issued or fully guaranteed or insured by the U.S. Government having
maturities of not more than twenty-four (24) months from the date of acquisition thereof;




     (2) time deposits with, certificates of deposit, bankers’ acceptances or Eurodollar
time deposits of, any commercial bank that (a) is organized under the laws of the United
States of America, any state thereof or the District of Columbia or is the principal banking
subsidiary of a bank holding company organized under the laws of the United States of
America, any state thereof or the District of Columbia, and is a member of the Federal
Reserve System, (b) issues long term securities with a rating of at least A- (or then
equivalent grade, in each case with a stable outlook) by S&P and A3 (or then equivalent
grade, in each case with a stable outlook) by Moody’s at the time of acquisition and (c) has
combined capital and surplus of at least $500,000,000, in each case with maturities of not
more than twenty-four (24) months from the date of acquisition thereof;




     (3) commercial paper of an issuer rated at least “A-1” (or the then equivalent grade)
by S&P or “P-1” (or the then equivalent grade) by Moody’s at the time of acquisition or
guaranteed by a letter of credit issued by a financial institution rated at least A- (or
then equivalent grade, in each case with stable outlook) by S&P and A3 (or then equivalent
grade, in each case with stable outlook) by Moody’s at the time of acquisition and such
financial institution otherwise meets the requirements of subsections (a) and (c) of clause
(2) of this definition, in each case having a tenor of not more than 270 days;




     (4) taxable and tax-exempt municipal securities rated at least A- (or then equivalent
grade) by S&P and A3 (or then equivalent grade) by Moody’s, including variable rate
municipal securities, having maturities or put rights of not more than twenty-four (24)
months from the date of acquisition;




     (5) corporate or bank debt of an issuer rated at least A- (or then equivalent grade, in
each case with a stable outlook) by S&P and A3 (or then equivalent grade, in each case with
stable outlook) by Moody’s at the time of acquisition and having maturities of not more than
twenty-four (24) months from the date of acquisition;




     (6) repurchase agreements relating to any of the investments listed in clauses (1)
through (5) above with a market value at least equal to the consideration paid in connection
therewith, with any Person who regularly engages in the business of entering into repurchase
agreements and has a combined capital and surplus of not less than $500,000,000 whose long
term securities are rated at least A- (or then equivalent grade) by S&P and A3 (or then
equivalent grade) by Moody’s at the time of acquisition;




     (7) asset-backed securities having as the underlying asset securities issued or
guaranteed by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage
Association rated at least A- (or then equivalent grade, in each case with stable outlook)
by S&P and A3 (or then equivalent grade, in each case with stable outlook) by Moody’s at the
time of



4









 






acquisition and having maturities of not more than twenty-four (24) months from the
date of acquisition; and




     (8) Investments, classified in accordance with GAAP as current assets of the Company or
any of its Subsidiaries, in money market mutual or similar funds having assets in excess of
$100,000,000, at least 95% of the assets of which are comprised of assets specified in
clauses (1) through (4) above of this definition.



     “Change of Control” means the occurrence of one or more of the following:




     (1) the sale, lease, transfer, conveyance or other disposition (other than by 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;




     (2) the adoption of a plan relating to the liquidation or dissolution of the Company;




     (3) the consummation of any transaction (including any merger or consolidation) the
result of which is that any “person” (as such term is used in Section 13(d)(3) of the
Exchange Act) becomes the “beneficial owner” (as such term is defined in Rule 13d-3 and Rule
13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any
particular “person,” 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), directly or indirectly through one or more intermediaries, of more than
50% of the Voting Stock of the Company, measured by voting power rather than number of
            shares; or




     (4) the first day on which a majority of the members of the Board of Directors are not
Continuing Directors;


provided, however, that a transaction in which the Company becomes a Subsidiary of another Person
(other than a Person that is an individual) shall not constitute a Change of Control if (a) the
shareholders of the Company immediately prior to such transaction “beneficially own” (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly through one
or more intermediaries, at least a majority of the outstanding Voting Stock of the Company,
measured by voting power rather than number of shares, immediately following the consummation of
such transaction and (b) immediately following the consummation of such transaction, no “person”
(as such term is defined above), other than such other Person (but including the holders of the
Equity Interests of such other Person), “beneficially owns” (as such term is defined above),
directly or indirectly through one or more intermediaries, more than 50% of the outstanding Voting
Stock of the Company, measured by voting power rather than number of shares.




     “Clearstream” means Clearstream Banking, S.A.



     “Company” means Holly Corporation, a Delaware corporation, and any and all successors
thereto.



     “Consolidated Cash Flow” means, with respect to any specified Person for any reference period,
the Consolidated Net Income of such Person for such period plus, without duplication:



5









 






     (1) 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




     (2) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries
for such period, to the extent that such Consolidated Interest Expense was deducted in
computing such Consolidated Net Income; plus




     (3) depreciation, amortization (including amortization of intangibles but excluding
amortization of prepaid cash expenses that were paid in a prior period) 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, amortization and other non-cash expenses were
deducted in computing such Consolidated Net Income; minus




     (4) non-cash items increasing such Consolidated Net Income for such period, other than
the accrual of revenue in the ordinary course of business,



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




     “Consolidated Interest Coverage Ratio” means with respect to any specified Person for any
period, the ratio of the Consolidated Cash Flow of such Person for such period to the Consolidated
Interest Expense of such Person for such period; provided, however, that the Consolidated Interest
Coverage Ratio shall be calculated giving pro forma effect to each of the following transactions as
if each such transaction had occurred at the beginning of the applicable four-quarter reference
period:




     (1) any incurrence, assumption, guarantee, repayment, repurchase, redemption,
defeasance or other discharge by such Person or any of its Restricted Subsidiaries of any
Indebtedness (other than revolving credit borrowings) or any issue, repurchase or other
retirement of any Disqualified Stock by any of them, subsequent to the commencement of the
period for which the Consolidated Interest Coverage Ratio is being calculated but prior to
the date on which the event for which the calculation of the Consolidated Interest Coverage
Ratio is made (the “Calculation Date”); and




     (2) any acquisition that has been made by such Person or any of its Restricted
Subsidiaries, or approved and expected to be consummated within 30 days of the Calculation
Date, including, in each case, through a merger or consolidation, and including any related
financing transactions, during the reference period or subsequent to such reference period
and on or prior to the Calculation Date; provided that pro forma effect (in accordance with
Regulation S-X under the Securities Act) shall be given to the Consolidated Cash Flow of the
Person which is the subject of any such acquisition;


provided, further, that (a) the Consolidated Cash Flow attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses (and ownership interests therein)
disposed of prior to the Calculation Date, shall be excluded, (b) the Consolidated Interest Expense
attributable to discontinued operations, as determined in accordance with GAAP, and operations or
businesses (and ownership interests therein) disposed of prior to the Calculation Date, shall be
excluded, but only to the extent that the obligations giving rise to such Consolidated Interest
Expense will not be obligations of the specified Person or any of its Restricted Subsidiaries
following the Calculation Date, (c) the Consolidated Interest Expense attributable to interest on
any Indebtedness bearing a floating


6









 






interest rate shall be computed on a pro forma basis as if the average rate in effect from the
beginning of the reference period to the Calculation Date had been the applicable rate for the
entire period, unless such Person or any of its Subsidiaries is a party to an applicable Hedging
Obligation (which shall remain in effect for the 12-month period immediately following the
Calculation Date) that has the effect of fixing the interest rate on the date of computation, in
which case such rate (whether higher or lower) shall be used, (d) any Person that is a Restricted
Subsidiary on the Calculation Date will be deemed to have been a Restricted Subsidiary at all times
during such four-quarter period and (e) any Person that is not a Restricted Subsidiary on the
Calculation Date will be deemed not to have been a Restricted Subsidiary at any time during such
four-quarter period.




     “Consolidated Interest Expense” means, with respect to any Person for any period, determined
on a consolidated basis in accordance with GAAP, the sum of, without duplication:




     (1) the consolidated interest expense of such Person and its Restricted Subsidiaries
for such period, whether paid or accrued (including 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, imputed interest with respect to Attributable Indebtedness, commissions,
discounts and other fees and charges incurred in respect of letter of credit or bankers’
acceptance financings, and net payments (if any) made or received pursuant to interest rate
Hedging Obligations);




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




     (3) any interest 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; and




     (4) the product of (a) all dividends, whether paid or accrued and whether or not in
cash, on any series of Disqualified Stock of such Person or any preferred stock of its
Restricted Subsidiaries, other than dividends on Equity Interests payable solely in Equity
Interests of such Person (other than Disqualified Stock) or to such Person or a Restricted
Subsidiary of such Person, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state and local
statutory tax rate of such Person, expressed as a decimal, in each case, determined on a
consolidated basis in accordance with GAAP.



     “Consolidated Net Income” means, with respect to any specified Person for any period, the
aggregate of the net income (loss) of such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP and without any reduction in respect of
preferred stock dividends, 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 shall be included only to the
extent of the amount of dividends or distributions paid in cash to the specified Person or a
Restricted Subsidiary thereof;




     (2) the net income (but not loss) of any Restricted Subsidiary shall 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



7









 






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 Restricted Subsidiary or its
equityholders;




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




     (4) any non-cash compensation charge arising from any grant of stock, stock options or
other equity-based awards shall be excluded;




     (5) any gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (a) any Asset Sale (including dispositions pursuant to
sale-and-leaseback transactions) or (b) the disposition of any securities by such Person or
the extinguishment of any Indebtedness of such Person shall be excluded;




     (6) non-cash gains and losses attributable to movement in the mark-to-market valuation
of Hedging Obligations pursuant to Financial Accounting Standards Board Statement No. 133
shall be excluded;




     (7) any impairment charge or asset write-off pursuant to Financial Accounting Standards
Board Statement No. 142 “Goodwill and Other Intangible Assets” shall be excluded; and




     (8) any extraordinary or nonrecurring gain or loss, together with any related provision
for taxes on such extraordinary or nonrecurring gain or loss, shall be excluded.



     “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 and such Person’s
Restricted Subsidiaries’ most recent quarterly or annual consolidated balance sheet prepared in
accordance with GAAP less applicable reserves reflected in such balance sheet, after deducting the
following amounts: (a) all current liabilities of such Person and its Restricted Subsidiaries
reflected in such balance sheet, and (b) all goodwill, trademarks, patents, unamortized debt
discounts and expenses and other like intangibles of such Person and its Restricted Subsidiaries
reflected in such balance sheet.



     “continuing” means, with respect to any Default or Event of Default, that such Default or
Event of Default has not been cured or waived.



     “Continuing Director” means, as of any date of determination, any member of the Board of
Directors, who:




     (1) was a member of the Board of Directors on the Issue Date; or




     (2) was nominated for election to the Board of Directors with the approval of, or whose
election to the Board of Directors was ratified by, a majority of the Continuing Directors
who were members of the Board of Directors at the time of such nomination or election.



     “Corporate Trust Office of the Trustee” will be at the address of the Trustee specified in
Section 12.02 hereof (except with respect to payments on the Notes and any exchange, transfer, or
surrender of the Notes, in which case this address will be c/o U.S. Bank National Association, 60
Livingston Avenue,



8









 







St. Paul, Minnesota 55107, Attention: Bond Drop Window, or, at 100 Wall Street, Suite 1600,
New York, New York 10005) or such other address as to which the Trustee may give notice to the
Company.



     “Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as
of April 7, 2009, among the Company, as the Borrower, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and L/C Issuer, UBS Loan Finance LLC and U.S. Bank National Association,
as Co-Documentation Agents, Union Bank of California, N.A. and Compass Bank, as Syndication Agents,
the other lenders party thereto and Banc of America Securities LLC, as Lead Arranger and Sole Book
Manager, including any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, restated, supplemented, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time, including
increases in the principal amount thereof.



     “Credit Facilities” means one or more debt facilities (including the Credit Agreement), notes,
indentures or commercial paper facilities, in each case with banks, investment funds, noteholders
or other lenders providing for revolving credit loans, term loans, receivables financings,
including through the sale of receivables to such lenders or to special purpose entities formed to
borrow from such lenders against such receivables, letters of credit, bonds, notes, indentures or
debentures, in each case, as amended, restated, supplemented, modified, renewed, refunded, replaced
or refinanced (including by means of sales of debt securities to institutional or other investors)
in whole or in part from time to time.



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



     “Default” means, with respect to the Notes, any event that is, or after notice or the lapse of
time or both would be, an Event of Default.



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



     “Depositary” means, with respect to the Notes 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 Notes, and
any and all successors thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.



     “Disqualified Stock” means 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), or upon the happening of
any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder thereof, in whole or in part, on or prior to
the date that is 91 days after the date on which the Notes mature or are redeemed or retired in
full; provided, however, that any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof (or of any security into which it is convertible or for which it is
exchangeable) have the right to require the issuer to repurchase such Capital Stock (or such
security into which it is convertible or for which it is exchangeable) upon the occurrence of any
of the events constituting an Asset Sale or a Change of Control shall not constitute Disqualified
Stock if such Capital Stock (and all such securities into which it is convertible or for which it
is exchangeable) provides that the issuer thereof will not repurchase or redeem any such Capital
Stock (or any such security into which it is convertible or for which it is exchangeable) pursuant
to such provisions prior to





9









 









compliance by the Company with the provisions of Section 4.10 or Section 4.15 hereof, as the
case may be. 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.




     “Domestic Restricted Subsidiary” means any Restricted Subsidiary of the Company that was
formed under the laws of the United States or any state of the United States or the District of
Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of the
Company.



     “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 any sale of Equity Interests (other than Disqualified Stock) of the
Company either pursuant to an offering registered under the Securities Act or a private placement.



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



     “Event of Loss” means, with respect to any property or asset of the Company or any Restricted
Subsidiary of the Company, (a) any damage to such property or asset that results in an insurance
settlement with respect thereto on the basis of a total loss or a constructive or compromised total
loss or (b) the confiscation, condemnation or requisition of title to such property or asset by any
government or instrumentality or agency thereof. An Event of Loss shall be deemed to occur as of
the date of the insurance settlement, confiscation, condemnation or requisition of title, as
applicable.



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



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



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



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



     “Existing Indebtedness” means Indebtedness of the Company and its Restricted Subsidiaries
(other than Indebtedness under a Credit Facility) in existence on the Issue Date, until such
amounts are repaid.



     “fair market value” means, with respect to any asset or Investment, the fair market value of
such asset or Investment at the time of the event requiring such determination, as determined in
good faith by an officer of the Company or, with respect to any asset or Investment in excess of
$10.0 million (other than cash or Cash Equivalents), as determined by the Board of Directors.



     “Foreign Subsidiary” means any Restricted Subsidiary of the Company that is not organized
under the laws of the United States of America or any state thereof or the District of Columbia.



     “GAAP” means accounting principles generally accepted in the United States of America which
are in effect from time to time.



10









 





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



     “Global Notes” means, individually and collectively, each of the Restricted Global Notes and
the Unrestricted Global Notes.



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



     “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).



     “Guarantor” means any Subsidiary of the Company that becomes a guarantor of the Notes in
accordance with the provisions of this Indenture, and their respective successors and assigns, in
each case, until the Subsidiary Guarantee of such Person has been released in accordance with the
provisions of this Indenture.



     “Hedging Obligations” means, with respect to any Person, the obligations (to the extent they
are incurred in the ordinary course of business) of such Person under:




     (1) interest rate swap agreements, interest rate cap agreements and interest rate
collar agreements, but only to the extent that the notional amounts of such agreements do
not exceed 100% of the aggregate principal amount of such Indebtedness to which such
agreement relates;




     (2) other agreements or arrangements designed to protect such Person against
fluctuations in interest rates;




     (3) any hedging agreement or other arrangement, in each case that is designed to
provide protection against fluctuations in the price of crude oil, gasoline and other
refined products and natural gas (in the ordinary course of business and not for speculative
purposes);




     (4) any foreign currency futures contract, option or similar agreement or arrangement
designed to protect such Person against fluctuations in foreign currency rates; and




     (5) any form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement or any other master
agreement.



     “HEP” means Holly Energy Partners, L.P., a Delaware limited partnership.



     “HEP LP” means HEP Logistics Holdings, L.P., a Delaware limited partnership.



     “Holder” means a Person in whose name a Note is registered.



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



11









 





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



     “Indebtedness” means, with respect to any Person, any indebtedness of such Person, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments or letters of credit (or reimbursement agreements in respect thereof) or bankers’
acceptances or representing Capital Lease Obligations or Attributable Indebtedness in respect of
sale-and-leaseback transactions or the balance deferred and unpaid of the purchase price of any
property due more than six months after such property is acquired or such services are completed,
except any such balance that constitutes an accrued expense or trade payable, or representing any
Hedging Obligation, if and to the extent any of the preceding items (other than letters of credit,
Attributable Indebtedness and Hedging Obligations) would appear as a liability upon a balance sheet
of such 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) 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.



     Notwithstanding the foregoing, the following shall not constitute Indebtedness:




     (a) any indebtedness that has been defeased in accordance with GAAP or defeased
pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all
obligations relating thereto at Stated Maturity or redemption, as applicable, including all
payments of interest (including Special Interest, if any) and premium, if any) in a trust or
account created or pledged for the sole benefit of the holders of such indebtedness, and
subject to no other Liens, and in accordance with the other applicable terms of the
instrument governing such indebtedness; and




     (b) any obligation arising from any agreement providing for indemnities, guarantees,
purchase price adjustments, holdbacks or contingency payment obligations based on the
performance of the acquired or disposed assets or similar obligations (other than guarantees
of Indebtedness) incurred by any Person in connection with the acquisition or disposition of
assets.



     “Indemnification Agreements” means, collectively, (i) that certain Indemnification Agreement
dated as of July 8, 2005 (as amended, amended and restated, supplemented or otherwise modified from
time to time), executed by Navajo Pipeline Co., L.P., a Delaware limited partnership, for the
benefit of HEP LP, (ii) that certain Indemnification Agreement dated as of February 29, 2008 (as
amended, amended and restated, supplemented or otherwise modified from time to time), executed by
Navajo Pipeline Co., L.P., for the benefit of HEP LP, (iii) that certain Indemnification Agreement
dated as of February 29, 2008 (as amended, amended and restated, supplemented or otherwise modified
from time to time), executed by Navajo Refining Company, L.L.C., a Delaware limited liability
company, for the benefit of HEP LP, (iv) that certain Indemnification Agreement dated as of
February 29, 2008 (as amended, amended and restated, supplemented or otherwise modified from time
to time), executed by Woods Cross Refining Company, L.L.C., a Delaware limited liability company,
for the benefit of HEP LP and (v) any other indemnification agreement (as amended, amended and
restated, supplemented or otherwise modified from time to time), for the benefit of HEP LP, entered
into by the Company or any Guarantor pursuant to the terms of the Asset Contribution after the
Issue Date.



12









 





     “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 Note through
a Participant.



     “Initial Notes” means the first $200,000,000 aggregate principal amount of Notes issued under
this Indenture on the date hereof.



     “Initial Purchasers” means UBS Securities LLC, Banc of America Securities LLC and Goldman,
Sachs & Co.



     “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, who are not also QIBs.



     “Investment Grade Rating” of the Notes, means that the Notes shall have been assigned a
Moody’s rating of Baa3 or higher and an S&P rating of BBB- or higher, or if one of such rating
agencies shall not make a rating on the Notes publicly available for reasons outside the control of
the Company, then “Investment Grade Rating” shall mean that the Notes shall have been assigned such
a rating by one of such rating agencies and an equivalent investment grade credit rating from any
other “nationally recognized statistical rating organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Company.



     “Investments” means, with respect to any Person, all investments by such Person in other
Persons (including Affiliates) in the forms of direct or indirect loans (including guarantees by
the referent Person of, and Liens on any assets of the referent Person securing, Indebtedness or
other obligations of other Persons), 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; provided, however, that the following shall not constitute
Investments:




     (1) extensions of trade credit or other advances to customers on commercially
reasonable terms in accordance with normal trade practices or otherwise in the ordinary
course of business; and




     (2) endorsements of negotiable instruments and documents in the ordinary course of
business.



     If the Company or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of
the Company, the Company shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such Restricted Subsidiary
not sold or disposed of in an amount determined as provided in Section 4.07(f) hereof. The
acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an
Investment in a third Person will be deemed to be an Investment by the Company or such Restricted
Subsidiary in such third Person in an amount equal to the fair market value of the Investments held
by the acquired Person in such third Person in an amount determined as provided in Section 4.07(f)
hereof. 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.



13









 





     “Issue Date” means the first date on which the Notes are originally issued under this
Indenture.



     “Joint Venture Investments” means Investments in joint ventures or similar entities, provided
that the applicable joint venture or similar entity must engage in a Principal Business.



     “Legal Holiday” means a Saturday, a Sunday or a day on which banking institutions in Dallas,
Texas, the City of New York or 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.



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



     “Lien” means, with respect to any asset, any mortgage, 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 under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction other than a precautionary financing statement
respecting a lease not intended as a security agreement.



     “Make-Whole Amount” with respect to a Note means an amount equal to the excess, if any, of:




     (1) the present value of the remaining interest (including Special Interest, if
any), premium, if any, and principal payments due on such note as if such note were redeemed
on June 15, 2013 computed using a discount rate equal to the Treasury Rate plus 50
basis points, over




     (2) the outstanding principal amount of such Note.




     “Make-Whole Average Life” means the number of years (calculated to the nearest one-twelfth)
between the date of redemption and June 15, 2013.




     “Make-Whole Price” with respect to a Note means the greater of:




     (1) the sum of the outstanding principal amount and Make-Whole Amount of such
Note; and




     (2) the redemption price of such Note on June 15, 2013, determined pursuant to
the indenture (104.9375% of the principal amount).



     “MLP Parties” means, collectively, Holly Logistics Services, L.L.C., HEP LP, HEP Logistics GP,
L.L.C., HEP and each of its Subsidiaries.



     “Moody’s” means Moody’s Investors Service, Inc. or any successor to the rating agency business
thereof.



     “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 any cash or Cash



14









 







Equivalents received upon the sale or other disposition of any non-Cash Consideration received
in any Asset Sale), net of, without duplication:




     (1) the direct costs relating to such Asset Sale (including legal, accounting and
investment banking fees, sales commissions, recording fees, title transfer fees, title
insurance premiums, appraiser fees and costs incurred in connection with preparing such
asset for sale) and any relocation expenses incurred as a result thereof;




     (2) taxes paid or estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing arrangements);




     (3) amounts required to be applied to the repayment of Indebtedness (other than
Indebtedness under a revolving credit facility) secured by a Lien on the asset or assets
that were the subject of such Asset Sale;




     (4) any reserve established in accordance with GAAP or any amount placed in escrow, in
either case for adjustment in respect of the sale price of such asset or assets, until such
time as such reserve is reversed or such escrow arrangement is terminated, in which case Net
Proceeds shall include only the amount of the reserve so reversed or the amount returned to
the Company or its Restricted Subsidiaries from such escrow arrangement, as the case may be;
and




     (5) all distributions and other payments required to be made to minority interest
holders in Restricted Subsidiaries as a result of such Asset Sale.



     “Non-Recourse Debt” means Indebtedness (other than under an Indemnification Agreement):




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




     (2) no default with respect to which (including any rights the holders thereof may have
to take enforcement action against an Unrestricted Subsidiary) would permit (upon notice,
lapse of time or both) the holders of other Indebtedness of the Company or any of its
Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.



     “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. The Initial Notes
and the Additional Notes shall be treated as a single class for all purposes under this Indenture,
and unless the context otherwise requires, all references to the Notes shall include the Initial
Notes and any Additional Notes.



     “Obligations” means any principal, interest, penalties, fees, indemnifications,
reimbursements, damages and other liabilities payable under the documentation governing any
Indebtedness.



15









 





     “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,
any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such


Person.



     “Officers’ Certificate” means a certificate signed on behalf of the Company by two Officers of
the Company, one of whom must be the principal executive officer, the principal financial officer,
the treasurer or the principal accounting officer of the Company, that meets the requirements of
Section 12.05 hereof.



     “Opinion of Counsel” means an opinion from legal counsel who is reasonably acceptable to the
Trustee, that meets the requirements of Section 12.05 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.



     “Pari Passu Indebtedness” means, with respect to any Net Proceeds from Asset Sales,
Indebtedness of the Company and its Restricted Subsidiaries, excluding any Subordinated
Indebtedness, the terms of which require the Company or such Restricted Subsidiary to apply such
Net Proceeds to offer to repurchase such Indebtedness.



     “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).



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



     “Permitted Indebtedness” means:




     (1) the incurrence by the Company or a Restricted Subsidiary of the Company of
additional Indebtedness under any Credit Facility so long as the aggregate principal amount
at any time outstanding of all Indebtedness incurred under this clause (1) does not exceed
the greater of (a) $450.0 million and (b) an amount equal to the sum of (i) 95% of the book
value of accounts receivable (less allowance for doubtful accounts), (ii) 90% of the
inventory (less applicable reserves) of the Company and its Restricted Subsidiaries,
calculated on a consolidated basis and in accordance with GAAP, and (iii) 100% of cash held
by the Company and the Guarantors as of the date of the Company’s most recently available
internal balance sheet; provided that Restricted Subsidiaries that are not Guarantors may
not incur more than $25.0 million of Indebtedness pursuant to this clause (1);




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




     (3) the incurrence by the Company and its Restricted Subsidiaries of Hedging
Obligations;




     (4) the incurrence by the Company and the Guarantors of Indebtedness represented by the
Notes to be issued on the date of this Indenture and the related Subsidiary Guarantees and
the Exchange Notes and the related Subsidiary Guarantees to be issued pursuant to the
Registration Rights Agreement;




16









 











     (5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of
intercompany Indebtedness or Disqualified Stock between or among the Company and any of its
Restricted Subsidiaries or between or among any Restricted Subsidiaries; provided, however,
that (a) if the Company or any Guarantor is the obligor on such Indebtedness and the payee
is not the Company or a Guarantor, such Indebtedness must be unsecured and expressly
subordinated to the prior payment in full in cash of all obligations then due with respect
to the Notes, in the case of the Company, or the Subsidiary Guarantee, in the case of a
Guarantor; and (b) (A) any subsequent issuance or transfer of Equity Interests that results
in any such Indebtedness or Disqualified Stock 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
Indebtedness or Disqualified Stock to a Person that is not either the Company or a
Restricted Subsidiary of the Company, will be deemed, in the case of each of clause (A) and
(B), to constitute an incurrence or issuance of such Indebtedness or Disqualified Stock, as
the case may be, by the Company or such Restricted Subsidiary, as the case may be, that was
not permitted by this clause (5);




     (6) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness
in respect of workers’ compensation claims, self-insurance obligations, bankers’
acceptances, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds
or other similar bonds or obligations, in each case incurred in the ordinary course of
business, and any guarantees or letters of credit functioning as or supporting any of the
foregoing;




     (7) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted
Refinancing Indebtedness in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease, refund, discharge or otherwise retire Indebtedness or
Disqualified Stock that was permitted by this Indenture to be incurred pursuant to clauses
(2), (4), (7) or (12) of this definition or Section 4.09(a) hereof;




     (8) incurrence by any Subsidiary of the Company of a Subsidiary Guarantee;




     (9) incurrence of Non-Recourse Debt;




     (10) the guarantee by the Company or any of the Guarantors of Indebtedness of the
Company or a Subsidiary of the Company and the guarantee by any Foreign Subsidiary of
Indebtedness of another Foreign Subsidiary, in each case, that was permitted to be incurred
by this definition or the provisions of Section 4.09 hereof;




     (11) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument inadvertently drawn against insufficient funds, so long as such
Indebtedness is covered within ten business days;




     (12) the incurrence by the Company or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations, Synthetic 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 any of its Restricted Subsidiaries, in an aggregate principal amount, including
all Permitted Refinancing Indebtedness incurred to refund, refinance, replace, defease or
discharge any Indebtedness incurred pursuant to this clause (12), not to exceed $40 million
at any time outstanding;



17









 






     (13) obligations (contingent or otherwise) of the Company or of its Restricted
Subsidiaries or arising under the Indemnification Agreements in an aggregate amount not to
exceed by more than $5.0 million the total consideration paid by HEP to the Company in
connection with the transactions in which the Company became obligated under such
Indemnification Agreements; and




     (14) incurrence by the Company or any Guarantor of any additional Indebtedness
(measured by principal amount or accreted value, as applicable) or Disqualified Stock
(measured by the greater of its voluntary or involuntary maximum fixed repurchase or
redemption price plus accrued and unpaid dividends (if not included in such redemption
price)), in an aggregate principal amount, including all Permitted Refinancing Indebtedness
incurred to refund, refinance, replace, defease or discharge such Indebtedness pursuant to
this clause (14), not to exceed $25.0 million at any time outstanding.



     “Permitted Investments” means:




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




     (2) any Investment in cash or 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 all or 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 (a)
an Asset Sale that was made pursuant to and in compliance with Section 4.10 hereof or (b) a
disposition of assets that does not constitute an Asset Sale;




     (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 or resolution of (a) 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 or
(b) litigation, arbitration or other disputes with Persons who are not Affiliates;




     (7) Investments represented by Hedging Obligations;




     (8) Investments in a Person engaged in a Principal Business, provided that the
aggregate amount of such Investments pursuant to this clause (8) in Persons that are not
Restricted Subsidiaries of the Company shall not exceed at any one time the greater of (a)
$50.0 million and (b) 5.0% of the Consolidated Net Tangible Assets of the Company at the
time of such Investment;




     (9) Investment in any Person to the extent such Investment consists of prepaid
expenses, negotiable instruments held for collection and lease, utility and workers’
compensation,



18









 





     performance and other similar deposits made in the ordinary course of business by the
Company or any Restricted Subsidiary;




     (10) any Investment (including Joint Venture Investments) existing on, or made pursuant
to binding commitments existing on, the Issue Date and any Investment consisting of an
extension, modification or renewal of any Investment existing on, or made pursuant to a
binding commitment existing on, the Issue Date; provided that the amount of any such
Investment may be increased (a) as required by the terms of such Investment as in existence
on the Issue Date or (b) as otherwise permitted under this Indenture;




     (11) Investments in any MLP Party in the form of debt instruments or Equity Interests
issued by such MLP Party that are received in consideration for logistics assets of the
Company or any Restricted Subsidiary of the Company; provided that fair market value is
received by the Company and its Restricted Subsidiaries in consideration for such assets;
and




     (12) Investments (i) to maintain a 2% general partnership interest in HEP or (ii) in
order to purchase additional limited partnership interests in HEP and/or to provide funding
to one or more MLP Parties for acquisitions of master limited partnership qualifying assets
or capital expenditures in an aggregate amount not to exceed $40.0 million outstanding at
any one time.



     “Permitted Liens” means:




     (1) Liens securing Indebtedness incurred pursuant to clause (1) of the definition of
“Permitted Indebtedness”; provided, however, that during any period when the provisions of
Section 4.09 hereof are suspended pursuant to Section 4.19 hereof, the clause (1) listed
under the definition of “Permitted Indebtedness” in this Indenture shall be deemed to be in
effect solely for purposes of determining compliance with this clause (1);




     (2) Liens in favor of the Company or any of the Guarantors;




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




     (4) Liens on property existing at the time of acquisition thereof by the Company or any
Restricted Subsidiary of the Company, provided that such Liens were in existence prior to
its contemplation of such acquisition and do not extend to any other property;




     (5) deposits to secure the performance of bids, trade contracts and leases, statutory
obligations, surety bonds (other than bonds related to judgments or litigation), performance
bonds and other obligations of a like nature incurred in the ordinary course of business;




     (6) Liens securing Hedging Obligations;




     (7) Liens existing on the Issue Date;




     (8) Liens securing Non-Recourse Debt;




19











 






     (9) any interest or title of a lessor under, or Liens that secure, a Capital Lease
Obligation or an operating lease;




     (10) Liens arising by reason of deposits necessary to obtain standby letters of credit
in the ordinary course of business;




     (11) pledges or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation, other than any
Lien imposed by ERISA;




     (12) easements, rights-of-way, restrictions and other similar encumbrances affecting
real property which, in the aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the Company or any Restricted
Subsidiary;




     (13) any other Liens imposed by operation of law which do not materially affect the
Company’s or any Guarantor’s ability to perform its obligations under the Notes or any
Subsidiary Guarantee;




     (14) any attachment or judgment Lien, unless the judgment it secures shall not, within
60 days after the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall not have been discharged within 60 days after the expiration of any such
stay;




     (15) Liens to secure Purchase Money Indebtedness or other Indebtedness incurred
pursuant to clause (12) of the definition of “Permitted Indebtedness” of this Indenture
which Liens shall not extend to any other property or assets of the Company or a Restricted
Subsidiary (other than any associated accounts, contracts and insurance proceeds);




     (16) Liens securing Permitted Refinancing Indebtedness with respect to any Indebtedness
referred to in clauses (3), (4) and (15) of this definition;




     (17) Liens incurred in the ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to Indebtedness that does not exceed $5.0 million at
any one time outstanding and that (a) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the ordinary course
of business) and (b) do not in the aggregate materially detract from the value of the
property or materially impair the use thereof in the operation of business by the Company or
such Restricted Subsidiary;




     (18) Liens securing Indebtedness in respect of any tax exempt bonds or notes, economic
or industrial development financing, tax beneficial or other municipal, county or state
sponsored financing, or similar government sponsored financing; provided that (i) the
Indebtedness secured by such Lien shall be incurred by the Company or a Guarantor acquiring
the Specified Assets; (ii) the proceeds of such Indebtedness secured by such Lien shall be
used to make or refinance acquisitions and/or for capital expenditures, in each case made
after the Issue Date; (iii) such Lien shall secure the assets acquired, replaced or
constructed in connection with the incurrence of such Indebtedness by the Company or a
Guarantor acquiring the Specified Assets; and (iv) no Default or Event of Default shall have
occurred or be continuing at the time of the incurrence of such Indebtedness secured by such
Lien;




     (19) Liens securing the Notes or Subsidiary Guarantees; and



20









 






     (20) Liens to secure Indebtedness having an aggregate principal amount which, when
added together with all other Indebtedness secured by Liens incurred pursuant to this clause
(20) and then outstanding, does not exceed $20.0 million.



     “Permitted Refinancing Indebtedness” means any Indebtedness of the Company or any of its
Restricted Subsidiaries incurred or any Disqualified Stock of the Company of its Restricted
Subsidiaries issued (a) in exchange for, or the net proceeds of which are used to extend, renew,
refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part,
or (b) constituting an amendment, modification or supplement to or a deferral or renewal of ((a)
and (b) above, collectively, a “Refinancing”), any other Indebtedness or preferred stock of the
Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), in a
principal amount or, in the case of Disqualified Stock, liquidation preference, not to exceed
(after deduction of reasonable and customary fees and expenses incurred in connection with the
Refinancing) the lesser of:




     (1) the principal amount or, in the case of preferred stock, liquidation preference, of
the Indebtedness, or preferred stock so Refinanced (plus, in the case of Indebtedness, the
amount of premium, if any, paid in connection therewith), and




     (2) if the Indebtedness being Refinanced was issued with any original issue discount,
the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time
of such Refinancing.



     Notwithstanding the preceding, no Indebtedness or Disqualified Stock will be deemed to be
Permitted Refinancing Indebtedness, unless:




     (1) such Indebtedness or Disqualified Stock has (a) a final maturity date or
redemption date, as applicable, no earlier than the final maturity date or redemption date,
as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the
Weighted Average Life to Maturity of the Indebtedness or preferred stock being Refinanced or
(b) a final maturity date or redemption date, as applicable, more than 90 days after the
principal maturity date of the Notes;




     (2) if the Indebtedness being Refinanced is Subordinated Indebtedness, such
Indebtedness has a final maturity date or redemption date, as applicable, later than the
final maturity date or redemption date, as applicable, of, and is contractually subordinated
in right of payment to, the Notes or the Subsidiary Guarantees, as the case may be, on terms
at least as favorable, taken as a whole, to the Holders of Notes as those contained in the
documentation governing the Subordinated Indebtedness being Refinanced at the time of the
Refinancing; and




     (3) such Indebtedness or Disqualified Stock is incurred or issued by the Company or
such Indebtedness or Disqualified Stock is incurred or issued by the Restricted Subsidiary
who is the primary obligor on the Indebtedness being Refinanced or the issuer of the
preferred stock being Refinanced.



     “Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, limited liability company or government or
other entity.



     “Principal Business” means:




     (1) the business of the exploration for, and development, acquisition, production,
processing, marketing, refining, storage and transportation of, hydrocarbons.



21









 






     (2) any related energy and natural resource business;




     (3) any business currently engaged in by the Company or its Subsidiaries; and




     (4) any activity or business that is a reasonable extension, development or expansion
of any of the activities or businesses described in clauses (1) through (3) of this
definition or that is ancillary or necessary or desirable to facilitate such activities or
businesses.



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



     “Purchase Money Indebtedness” means Indebtedness incurred for the purpose of (1) financing all
or any part of the purchase price of any real or personal property or assets incurred prior to, at
the time of, or within 120 days after, the acquisition of such property or assets or (2) financing
all or any part of the cost of construction of, or repairs, improvements or additions to, any such
property or assets, provided that the amount of any such financing shall not exceed the amount
expended in the acquisition of, or the construction of, or repairs, improvements or additions to,
such property or assets.



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



     “Registration Rights Agreement” means the Registration Rights Agreement, dated as of June 10,
2009, among the Company, the Guarantors and the other parties named on the signature pages thereof,
as such agreement may be amended, modified or supplemented from time to time and, with respect to
any Additional Notes, one or more registration rights agreements among the Company, the Guarantors
and the other parties thereto, as such agreement(s) may be amended, modified or supplemented from
time to time, relating to rights given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act.



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



     “Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf of
and registered in the name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 903 of Regulation S.



     “Responsible Officer,” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the Trustee) or any other
officer of the Trustee customarily performing functions similar to those performed by any of the
above designated officers 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 Note” means a Definitive Note bearing the Private Placement Legend.



     “Restricted Global Note” means a Global Note 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.



22









 





     “Restricted Subsidiary” of a Person means any Subsidiary of such 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.



     “SEC” means the Securities and Exchange Commission.



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



     “S&P” means Standard & Poor’s Ratings Services or any successor to the rating agency business
thereof.



     “Senior Indebtedness” means with respect to any Person, Indebtedness of such Person, unless
the instrument creating or evidencing such Indebtedness provides that such Indebtedness is
subordinate in right of payment to the Notes or the Subsidiary Guarantee of such Person, as the
case may be.



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



     “Significant Subsidiary” means any 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.



     “Special Interest” has the meaning assigned to that term pursuant to the Registration Rights
Agreement.



     “Specified Assets” means the refinery and related assets purchased by Holly Refining &
Marketing—Tulsa LLC, as buyer (formerly named Holly Refining & Marketing—MidCon, L.L.C.), from
Sunoco, Inc. (R&M), as seller, pursuant to the Asset Sale and Purchase Agreement, dated April 15,
2009, between those parties.



     “Stated Maturity” means, with respect to any installment of interest or principal on any
series of Indebtedness, the date on which such payment of interest or principal was scheduled to be
paid in the original documentation governing such Indebtedness, and shall 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.



     “Subordinated Indebtedness” means Indebtedness of the Company or a Guarantor that is
contractually subordinated in right of payment to the Notes or the Subsidiary Guarantee of such
Guarantor, as applicable.



     “Subsidiary” means, with respect to any Person, (1) any corporation, association or other
business entity of which more than 50% of the Voting Stock thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); (2) any partnership (a) the sole general partner or the managing
general partner of



23









 







which is such Person or a Subsidiary of such Person or (b) the only general partners of which
are such Person or of one or more Subsidiaries of such Person (or any combination thereof); and (3)
notwithstanding the foregoing clauses (1) and (2), with respect to the Company, HEP shall only be
considered a Subsidiary of the Company and any of its other Subsidiaries for so long as the most
recently available quarterly financial results of HEP and its Subsidiaries are consolidated with
the Company’s financial results.



     “Subsidiary Guarantee” means a guarantee, included in this Indenture, of the Company’s
obligations under the Notes and this Indenture.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property creating obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).



     “TIA” means the Trust Indenture Act of 1939, as amended (15 U.S.C. §§ 77aaa-77bbbb).



     “Treasury Rate” means the yield to maturity at the time of the computation of United States
Treasury securities with a constant maturity (as compiled by and published in the most recent
Federal Reserve Statistical Release H.15(519), which has become publicly available at least two
business days prior to the date of the redemption notice or, if such Statistical Release is no
longer published, any publicly available source of similar market date) most nearly equal to the
then remaining maturity of the notes assuming redemption of the Notes on June 15, 2013; provided,
however, that if the Make-Whole Average Life of such Note is not equal to the constant maturity of
the United States Treasury security for which a weekly average yield is given, the Treasury Rate
shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from
the weekly average yields of United States Treasury securities for which such yields are given,
except that if the Make-Whole Average Life of such Notes is less than one year, the weekly average
yield on actually traded United States Treasury securities adjusted to a constant maturity of one
year shall be used.



     “Trustee” means U.S. Bank Trust National Association until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means the successor
serving hereunder.



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



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



     “Unrestricted Subsidiary” means (i) HEP and its Subsidiaries, but only at such time as the
most recently available quarterly financial results of HEP and its Subsidiaries are consolidated
with the Company’s financial results, and (ii) any Subsidiary that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent that
such Subsidiary at the time of such designation:




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




     (2) is not party to any agreement, contract, arrangement or understanding with the
Company or any Restricted Subsidiary of the Company unless such agreement, contract,



24









 







arrangement or understanding does not violate the terms of this Indenture described
under Section 4.11 hereof;




     (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, in each case, except to the
extent otherwise permitted by this Indenture; 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.



     Any such designation by the Board of Directors shall be evidenced to the Trustee by filing
with the Trustee a certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers’ Certificate certifying that such designation complied with the
preceding conditions and was permitted by the provisions described under Section 4.07 hereof. If,
at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for purposes of
this Indenture and any Indebtedness of such Subsidiary shall 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 pursuant to Section 4.09 hereof, the Company shall be in default of
such covenant).



     The Board of Directors may at any time designate any Unrestricted Subsidiary to be a
Restricted Subsidiary, provided that such designation shall 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 shall only be permitted if (1) such Indebtedness is
permitted by the provisions described under Section 4.09 hereof, calculated on a pro forma basis as
if such designation had occurred at the beginning of the four-quarter reference period, and (2) no
Default or Event of Default would be in existence following such designation.



     “U.S. Government” means the federal government of the United States or any agency or
instrumentality thereof, the obligations of which are backed by the full faith and credit of the
United States.



     “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 (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 the directors, managers or trustees of such Person.



     “Weighted Average Life to Maturity” means, when applied to any security or instrument 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 (or redemption payments), including payment at final maturity (or mandatory
redemption), in respect of such security to instrument, 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 or liquidation preference of such security or instrument.



25









 





Section 1.02 Other Definitions.




	 	 	 	 	 
	 	 	Defined in
	Term	 	Section
	“Affiliate Transaction”
	 	 	4.11	 
	“Asset Sale Offer”
	 	 	3.09	 
	“Authentication Order”
	 	 	2.02	 
	“Cash Consideration”
	 	 	4.10	 
	“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	 
	“Event of Default”
	 	 	6.01	 
	“Excess Proceeds”
	 	 	4.10	 
	“incur” or “incurrence”
	 	 	4.09	 
	“Legal Defeasance”
	 	 	8.02	 
	“Offer Amount”
	 	 	3.09	 
	“Offer Period”
	 	 	3.09	 
	“Paying Agent”
	 	 	2.03	 
	“Payment Default”
	 	 	6.01	 
	“Purchase Date”
	 	 	3.09	 
	“Registrar”
	 	 	2.03	 
	“Reinstatement Date”
	 	 	4.19	 
	“Restricted Payments”
	 	 	4.07	 
	“Suspended Covenants”
	 	 	4.19	 






Section 1.03 Incorporation by Reference of Trust Indenture Act.




     Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture.



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



     “indenture securities” means the Notes;



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



     “indenture to be qualified” means this Indenture;



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



     “obligor” on the Notes and the Subsidiary Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Subsidiary Guarantees, respectively.



     All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.



26









 





Section 1.04 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 of successor sections or rules adopted by the SEC from time
to time.



ARTICLE 2

THE NOTES




Section 2.01 Form and Dating.




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



     The terms and provisions contained in the Notes will constitute, and are hereby expressly
made, a part of this Indenture and the Company, 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 Note conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern and be controlling.



     (b) Global Notes. Notes issued in global form will be substantially in the form of Exhibit A
hereto (including the Global Note Legend thereon and the “Schedule of Exchanges of Interests in the
Global Note” attached thereto). Notes issued in definitive form will be substantially in the form
of Exhibit A hereto (but without the Global Note Legend thereon and without the “Schedule of
Exchanges of Interests in the Global Note” attached thereto). Upon the authentication of an
Unrestricted Global Note pursuant to Section 2.06(b)(4) hereof, interests in a Restricted Global
Note shall be deemed to have been transferred to interests in the Unrestricted Global Note, unless
otherwise instructed by the Company. Any Unrestricted Global Note will be substantially in the
form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of Exchanges
of Interests in the Global Note” attached thereto, but without the Private Placement Legend
thereon). Each Global Note will represent such of the outstanding Notes as will be specified
therein and each shall provide that it represents the aggregate principal amount of outstanding
Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any



27









 







increase or decrease in the aggregate principal amount of outstanding 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) 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 Global Note that are held by
Participants through Euroclear or Clearstream.



     (d) Definitive Notes. Notwithstanding any contrary provision in this Indenture, without the
consent of the Company owners of beneficial interests in a Global Note may exchange such interests
for Definitive Notes only in the circumstances set forth in Section 2.06(a) hereof.



Section 2.02 Execution and Authentication.




     At least one Officer must sign the Notes for the Company by manual electronic image scan or
facsimile signature.



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



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



     The Trustee will, upon receipt of a written order of the Company signed by one Officer (an
“Authentication Order”), authenticate Notes for original issue under this Indenture, in an
aggregate principal amount of $200,000,000 in the case of the Initial Notes and in an aggregate
principal amount stated in the applicable Authentication Order in relation to any Additional Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed the aggregate
principal amount of Notes authorized for issuance by the Company 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 Company to authenticate
Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes authentication by such agent.
An authenticating agent has the same rights as an Agent to deal with Holders or an Affiliate of
the Company.



Section 2.03 Registrar and Paying Agent.




     The Company will maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (“Registrar”) and an office or agency where Notes may be presented for
payment (“Paying Agent”). The Registrar will keep a register of the Notes and of their transfer
and exchange. The Company 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 Company may change any Paying Agent or Registrar without notice to
any Holder. The Company will notify the Trustee in writing of the name and address of any Agent
not a party to this Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries
may act as Paying Agent or Registrar.



28









 





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



     The Company initially appoints the Trustee to act as the Registrar and Paying Agent (at its
offices indicated in the definition of Corporate Trust Office of the Trustee in Section 1.01
hereof) and to act as Custodian with respect to the Global Notes.



Section 2.04 Paying Agent to Hold Money in Trust.




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



Section 2.05 Holder Lists.




     The Trustee will preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of all Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company will furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of the Holders of Notes and the Company shall otherwise comply with TIA
§ 312(a).



Section 2.06 Transfer and Exchange.




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




     (1) the Company delivers to the Trustee 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 and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the Depositary;




     (2) subject to the Depositary’s rules, the Company in its sole discretion determines
that the Global Notes (in whole but not in part) should be exchanged for Definitive Notes
and delivers a written notice to such effect to the Trustee; or




     (3) there has occurred and is continuing an Event of Default and the Depositary
notifies the Trustee of its decision to exchange Global Notes for Definitive Notes.



29









 





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



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




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




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




     (A) both:




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




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




     (B) both:




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



30









 






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


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





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




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




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




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




     (4) Transfer and Exchange of Beneficial Interests in a Restricted Global Note for
Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 2.06(b)(2) above and:




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




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




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



31









 






     (D) the Registrar receives the following:




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




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




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



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



     Notwithstanding the provisions of the first sentence of this subparagraph (4), at the option
of the Company, beneficial interests in a Restricted Global Note shall automatically be exchanged
for beneficial interests in an Unrestricted Global Note upon compliance with the following
provisions. In order to effect such exchange, the Company shall comply in full with the
Depositary’s “Procedures for the Mandatory Exchange of Rule 144A Securities for Unrestricted
Securities” or “Procedures for the Mandatory Exchange of Regulation S Securities for Unrestricted
Securities,” as applicable (or such replacement procedures as the Depositary shall put in place).
Upon such exchange of beneficial interests pursuant to this Section 2.06(b)(4), the Registrar shall
reflect on its books and records the date of such transfer and a decrease and increase in the
principal amount of the applicable Restricted Global Note and the Unrestricted Global Note,
respectively, equal to the principal amount of beneficial interests transferred. Following any
such transfer pursuant to this Section 2.06(b)(4) of all of the beneficial interests in a
Restricted Global Note to an Unrestricted Global Note, such Restricted Global Note shall be
cancelled.



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



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




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



32









 






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




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




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




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




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




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




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


the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest in
a Restricted Global Note pursuant to this Section 2.06(c) shall be registered in such name or names
and in such authorized denomination or denominations as the holder of such beneficial interest
shall instruct the Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(1) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer contained therein.





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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the holder of such beneficial



33









 







interest, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (i) a
Participating Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;




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




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




     (D) the Registrar receives the following:




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




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




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




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



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



34









 






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




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




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




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




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




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




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




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


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





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




     (A) such exchange or transfer is effected pursuant to the Exchange Offer in
accordance with the Registration Rights Agreement and the Holder, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (i) a Participating Broker-Dealer, (ii) a
Person participating in



35









 







the distribution of the Exchange Notes or (iii) a Person who is an affiliate
(as defined in Rule 144) of the Company;




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




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




     (D) the Registrar receives the following:




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




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




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




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




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




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



     (e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this Section 2.06(e), the
Registrar will register the transfer or exchange of Definitive Notes. Prior to such registration
of transfer



36









 







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




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




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




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




     (C) if the transfer will be made pursuant to any other exemption from the
registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if applicable.




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




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




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




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




     (D) the Registrar receives the following:




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




     (ii) if the Holder of such Restricted Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the form
of an



37









 







Unrestricted Definitive Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;




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




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



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




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




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



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



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




     (1) Private Placement Legend.




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


“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR


38









 






OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, SUCH REGISTRATION.



THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF
ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS ONE YEAR (IN
THE CASE OF RULE 144A SECURITIES) AFTER THE LATER OF THE ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY) OR 40 DAYS (IN THE CASE OF REGULATION S SECURITIES), ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE
MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL
ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF
$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH
ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S
RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER OR THE ISSUER ON OR AFTER THE
RESALE RESTRICTION TERMINATION DATE.”





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




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


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


39









 






THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.



UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”





     (3) Original Issue Discount Legend. Each Note will bear a legend in substantially the
following form:


“FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF
THIS SECURITY, THE ISSUE PRICE IS $941.05, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS $58.95, THE
ISSUE DATE IS JUNE 10, 2009 AND THE YIELD TO MATURITY IS 11.000% PER ANNUM.”




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



     (i) General Provisions Relating to Transfers and Exchanges.




     (1) To permit registrations of transfers and exchanges, the Company will execute and
the Trustee will authenticate Global Notes and Definitive Notes upon receipt of the
Company’s written order or at the Registrar’s request.




     (2) No service charge will be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note for any registration of transfer or exchange, but
the Company 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



40









 







similar governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).




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




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




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




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




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




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




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




     (7) The Trustee will authenticate Global Notes and Definitive Notes upon receipt of a
written order of the Company signed by one of its Officers and in accordance with the
provisions of Section 2.02 hereof to the extent applicable.




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



Section 2.07 Replacement Notes.




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



41









 





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



Section 2.08 Outstanding Notes.




     The Notes outstanding at any time are all the Notes authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation, those reductions in the interest in a
Global Note effected by the Trustee in accordance with the provisions hereof, and those described
in this Section 2.08 as not outstanding. Except as set forth in Section 2.09 hereof, a Note does
not cease to be outstanding because the Company or an Affiliate of the Company holds the Note;
however, Notes held by the Company or a Subsidiary of the Company shall not be deemed to be
outstanding for purposes of Section 3.07(a) hereof.



     If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.



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



     If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof)
holds, by 10:00 a.m. Eastern Time on a redemption date or other maturity date, money sufficient to
pay Notes payable on that date, then on and after that date such Notes will be deemed to be no
longer outstanding and will cease to accrue interest.



Section 2.09 Treasury Notes.




     In determining whether the Holders of the required principal amount of Notes have concurred in
any direction, waiver or consent, Notes owned by the Company or any Guarantor, or by any Person
directly or indirectly controlling or controlled by or under direct or indirect common control with
the Company or any Guarantor, will be considered as though not outstanding, except that for the
purposes of determining whether the Trustee will be protected in relying on any such direction,
waiver or consent, only Notes that the Trustee knows are so owned will be so disregarded.



Section 2.10 Temporary Notes.




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



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



Section 2.11 Cancellation.




     The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and
Paying Agent will forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else will cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement or cancellation and will destroy canceled
Notes (subject to the record retention requirement of the Exchange Act). Certification of the
destruction of all canceled Notes



42









 




will be delivered to the Company. The Company may not issue new Notes to replace Notes that
it has paid or that have been delivered to the Trustee for cancellation.




Section 2.12 Defaulted Interest.




     If the Company defaults in a payment of interest on the Notes, it will pay the defaulted
interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date, in each case at the
rate provided in the Notes and in Section 4.01 hereof. The Company will notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and the date of the
proposed payment. The Company will fix or cause to be fixed each such special record date and
payment date; provided that no such special record date may be less than 10 days prior to the
related payment date for such defaulted interest. At least 15 days before the special record date,
the Company (or, upon the written request of the Company, the Trustee in the name and at the
expense of the Company) will mail or cause to be mailed to Holders a notice that states the special
record date, the related payment date and the amount of such interest to be paid.



ARTICLE 3

REDEMPTION AND PREPAYMENT




Section 3.01 Notices to Trustee.




     If the Company elects to redeem Notes pursuant to the optional redemption provisions of
Section 3.07 hereof, it must furnish to the Trustee, at least five Business Days prior to the
giving of notice of redemption pursuant to Section 3.03 hereof, an Officers’ Certificate setting
forth:




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




     (2) the redemption date;




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




     (4) the redemption price (if then determined and otherwise the method of
determination).



Section 3.02 Selection of Notes to Be Redeemed.




     If less than all of the Notes are to be redeemed at any time, the Trustee will select Notes
for redemption as follows:




     (1) if the Notes are listed on any national securities exchange, in compliance with the
requirements of the principal national securities exchange on which the Notes are listed; or




     (2) if the Notes are not listed on any national securities exchange, on a pro rata
basis or on as nearly a pro rata basis as is practicable, subject to the procedures of DTC,
unless such method is otherwise prohibited.



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



43









 





     The Trustee will promptly notify the Company in writing of the Notes selected for redemption
and, in the case of any Note selected for partial redemption, the principal amount thereof to be
redeemed. 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, the
entire outstanding amount of Notes held by such Holder shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption. No Notes of $2,000 or less will be redeemed or
purchased in part.



Section 3.03 Notice of Redemption.




     At least 30 days but not more than 60 days before a redemption date, the Company will mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more than 60
days prior to a redemption date if the notice is issued in connection with a defeasance of the
Notes or a satisfaction and discharge of this Indenture pursuant to Article 8 or 11 hereof.



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




     (1) the redemption date;




     (2) the redemption price (if then determined and otherwise the method of
determination);




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




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




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




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




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




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



     At the Company’s request, the Trustee will give the notice of redemption in the Company’s name
and at its expense; provided, however, that the Officers’ Certificate delivered to the Trustee
pursuant to Section 3.01 hereof requests that the Trustee give such notice and sets forth the
information to be stated in such notice as provided in the preceding paragraph.




44











 





Section 3.04 Effect of Notice of Redemption.




     Once notice of redemption is mailed in accordance with Section 3.03 hereof, Notes called for
redemption become irrevocably due and payable on the redemption date at the redemption price. A
notice of redemption may not be conditional.



Section 3.05 Deposit of Redemption or Purchase Price.




     No later than 10:00 a.m. Eastern Time on the redemption or purchase date, the Company will
deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or
purchase price of and accrued interest and Special Interest, if any, on all Notes to be redeemed or
purchased on that date. The Trustee or the Paying Agent will promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts
necessary to pay the redemption or purchase price of, and accrued interest on, all Notes to be
redeemed or purchased.



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



Section 3.06 Notes Redeemed or Purchased in Part.




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



Section 3.07 Optional Redemption.




     (a) At any time prior to June 15, 2012, the Company may on any one or more occasions redeem up
to 35% of the aggregate principal amount of Notes originally issued under this Indenture at a
redemption price of 109.875% of the principal amount thereof, plus accrued and unpaid interest and
Special Interest, if any, to the redemption date (subject to the rights of Holders on the relevant
record date to receive interest on an interest payment date that is on or prior to the redemption
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 remains outstanding immediately after the occurrence of such redemption
(excluding Notes held by the Company or its Affiliates); and




     (2) the redemption occurs within 120 days of the date of the closing of each such
Equity Offering.



     (b) Except pursuant to paragraphs (a), (d) and (e) of this Section 3.07, the Notes will not be
redeemable at the Company’s option prior to June 15, 2013.



45









 





     (c) On or after June 15, 2013, the Company may on any one or more occasions redeem the Notes,
in whole or in part, at the redemption prices (expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest and Special Interest, if any, on the Notes redeemed to
the applicable redemption date, if redeemed during the twelve-month period beginning on June 15 of
the years indicated below, subject to the rights of Holders on the relevant record date to receive
interest on an interest payment date that is on or prior to the redemption date:



	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	104.9375	%
	2014
	 	 	102.4688	%
	2015 and thereafter
	 	 	100.0000	%






     Unless the Company 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) The Company may redeem all (but not a portion of) the Notes when permitted by, and
pursuant to the conditions in, Section 4.15(c) of this Indenture.



     (e) At any time prior to June 15, 2013, the Company may on one or more occasions redeem the
Notes, in whole or in part, at the Make-Whole Price, plus accrued and unpaid interest and Special
Interest, if any, to the applicable date of redemption (subject to the rights of Holders on the
relevant record date to receive interest due on an interest payment date that is on or prior to the
redemption date).



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



Section 3.08 Mandatory Redemption.




     The Company is not required to make mandatory redemption or sinking fund payments with respect
to the Notes.



Section 3.09 Offer to Purchase by Application of Excess Proceeds.




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



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



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



46









 





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




     (1) that the Asset Sale Offer is being made pursuant to this Section 3.09 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 Company defaults in making such payment, any Note 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 purchased pursuant to an Asset Sale Offer may
elect to have Notes purchased in denominations of $2,000 or an integral multiple of $1,000
in excess thereof;




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




     (7) that Holders will be entitled to withdraw their election if the Company, the
Depositary or the Paying Agent, as the case may be, receives, not later than the expiration
of the Offer Period, a telegram, telex, electronic image scan, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;




     (8) that, if the aggregate principal amount of Notes and other Pari Passu Indebtedness
surrendered by holders thereof exceeds the Offer Amount, the Trustee will select the Notes
and other Pari Passu Indebtedness to be purchased on a pro rata basis based on the principal
amount of Notes and such other Pari Passu Indebtedness surrendered (with such adjustments as
may be deemed appropriate by the Company so that only Notes in denominations of $2,000, or
an integral multiple of $1,000 in excess thereof, will be purchased); and




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



     On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on
a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and will deliver or cause to be delivered to the Trustee the Notes properly accepted
together with an Officers’ Certificate stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, will promptly (but in any case not later than
five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Notes tendered by such



47









 







Holder and accepted by the Company for purchase, and the Company will promptly issue a new
Note, and the Trustee, upon written request from the Company, will authenticate and mail or deliver
(or cause to be transferred by book entry) such new Note to such Holder, in a principal amount
equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer on the Purchase Date.



ARTICLE 4

COVENANTS




Section 4.01 Payment of Notes.




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



     The Company will pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal at a rate that is 1.00% higher than the then applicable
interest rate on the Notes to the extent lawful; it will pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of interest and
Special 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 Company will maintain in the Borough of Manhattan, the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee, Registrar or
co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company 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 Company fails to maintain any such
required office or agency or fails 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 Company 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 Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the location of any such
other office or agency.



Section 4.03 Reports.




     (a) Whether or not required by the SEC’s rules and regulations, so long as any Notes are
outstanding, the Company will furnish to the Holders of Notes or cause the Trustee to furnish to
the Holders of Notes (or file with the SEC for public availability), within the time periods
specified in the SEC’s rules and regulations:



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     (1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Company were required to file such reports; and




     (2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Company were required to file such reports.



     All such reports will be prepared in all material respects in accordance with all of the rules
and regulations applicable to such reports. Each annual report on Form 10-K will include a report
on the Company’s consolidated financial statements by the Company’s certified independent
accountants. In addition, the Company will file a copy of each of the reports referred to in
clauses (1) and (2) above with the SEC for public availability within the time periods specified in
the rules and regulations applicable to such reports (unless the SEC will not accept such a filing)
and will post the reports on its website within those time periods.



     If, at any time, the Company is no longer subject to the periodic reporting requirements of
the Exchange Act for any reason, the Company will nevertheless continue filing the reports
specified in the preceding paragraphs with the SEC within the time periods specified above unless
the SEC will not accept such a filing. The Company agrees that it will not take any action for the
purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the
SEC will not accept the Company’s filings for any reason, the Company will post the reports
referred to in the preceding paragraph on its website within the time periods that would apply if
the Company were required to file those reports with the SEC.



     (b) The Company and the Guarantors agree that, for so long as any Notes remain outstanding, at
any time they are not required to file the reports required by paragraph (a) of this Section 4.03
with the SEC, the Company and the Guarantors will furnish to the Holders and to securities analysts
and prospective investors, upon their request, the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.



Section 4.04 Compliance Certificate.




     (a) The Company and each Guarantor (to the extent that such Guarantor is so required under the
TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’
Certificate stating that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the
best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance or observance of any
of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Company is taking or proposes to take with respect thereto).



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



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Section 4.05 Taxes.




     The Company will pay, and will cause each of its Subsidiaries to pay, prior to delinquency,
all material taxes, assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.



Section 4.06 Stay, Extension and Usury Laws.




     The Company 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 the
Company 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 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) The Company will not, and will 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
the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including any such
payment in connection with any merger or consolidation involving the Company or any of its
Restricted Subsidiaries) or to the direct or indirect holders of the 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 the Company and
other than dividends or distributions payable to the Company or a Restricted Subsidiary of
the Company);




     (2) purchase, redeem or otherwise acquire or retire for value (including in connection
with any merger or consolidation involving the Company) any Equity Interests of the Company
(other than any such Equity Interests owned by the Company or any Restricted Subsidiary of
the Company);




     (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise
acquire or retire for value, any Subordinated Indebtedness (other than intercompany
Indebtedness between or among the Company and its Restricted Subsidiaries), except a payment
of interest or principal at Stated Maturity; or




     (4) make any Restricted Investment (all such payments and other actions set forth in
these clauses (1) through (4) above being collectively referred to as “Restricted
Payments”),



     unless, at the time of and after giving effect to such Restricted Payment:




     (1) no Default or Event of Default shall have occurred and be continuing or would occur
as a consequence of such Restricted Payment;



50









 






     (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 Consolidated Interest 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 Issue Date is less
than the sum of the following amounts, without duplication:




     (A) 50% of the Consolidated Net Income of the Company for the period (taken as
one accounting period) from April 1, 2009 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




     (B) 100% of (x) the aggregate net cash proceeds and the fair market value of
any non-cash proceeds received by the Company since the Issue Date 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 Disqualified
Stock or convertible or exchangeable debt securities of the Company that have been
converted into or exchanged for such Equity Interests (other than Equity Interests
(or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (y)
the amount by which Indebtedness of the Company or any Restricted Subsidiary is
reduced on the Company’s consolidated balance sheet upon the conversion or exchange
after the Issue Date of any such Indebtedness into or for Equity Interests of the
Company (other than Disqualified Stock), and (z) the aggregate net cash proceeds, if
any, received by the Company or any of its Restricted Subsidiaries upon any
conversion or exchange described in clause (x) or (y) above; plus




     (C) to the extent that any Restricted Investment that was made after the Issue
Date is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for
cash or Cash Equivalents, an amount equal to such cash or Cash Equivalents (less the
cost of disposition, if any); plus




     (D) the amount equal to the net reduction in Investments in Unrestricted
Subsidiaries after the Issue Date resulting from (A) payments of dividends,
distributions or interest or other transfers of assets to the Company or any
Restricted Subsidiary from Unrestricted Subsidiaries, (B) the redesignation of
Unrestricted Subsidiaries as Restricted Subsidiaries or (C) the receipt of proceeds
by the Company or any Restricted Subsidiary from the sale or other disposition of
any portion of any Investment in an Unrestricted Subsidiary.



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




     (1) the payment of any dividend within 60 days after the date of declaration thereof if
at said date of declaration such payment would have complied with the provisions of this
Indenture;




     (2) the making of any Restricted Payment in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company)
of,



51









 







Equity Interests of the Company (other than Disqualified Stock) or from the
substantially concurrent contribution (other than by a Subsidiary of the Company) of capital
to the Company in respect of its Equity Interests (other than Disqualified Stock); provided
that the amount of any such net cash proceeds that are utilized for any such redemption,
repurchase, retirement, defeasance or other acquisition shall be excluded from clause (3)(B)
of Section 4.07(a) hereof;




     (3) the defeasance, redemption, repurchase, retirement or other acquisition of
Subordinated Indebtedness of the Company or any Guarantor (i) with the net cash proceeds
from an incurrence of, or in exchange for, Permitted Refinancing Indebtedness; or (ii) upon
a Change of Control or in connection with an Asset Sale to the extent required by the
agreement governing such Subordinated Indebtedness but only in instances where the Company
was required, as the result of such transaction, by the terms of this Indenture also to make
an offer pursuant to Section 4.10 or Section 4.15 hereof, as the case may be, and purchased
all Notes validly tendered pursuant to the relevant offer prior to acquiring such
Subordinated Indebtedness;




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




     (5) so long as no Default or Event of Default shall have occurred and be continuing,
the repurchase, redemption or other acquisition or retirement for value of any Equity
Interests of the Company held by any future, present or former employee or director (or any
of their respective heirs or estates or permitted transferees) of the Company or any of the
Company’s Restricted Subsidiaries pursuant to any agreements (including employment
agreements) or management equity plan or stock option plan or any other management or
employee benefit plan or agreement (including any management equity subscription agreement,
stock option agreement or similar written arrangement) approved by the Board of Directors;
provided, that the aggregate Restricted Payments made under this clause (5) do not exceed
$5.0 million in any calendar year;




     (6) repurchases, redemptions or other acquisitions or retirements for value of Equity
Interests of the Company deemed to occur upon exercise or exchange of warrants, options or
rights to acquire Equity Interests if such Equity Interests represent a portion of the
exercise or exchange price of such warrants, options or rights, and any repurchases,
redemptions or other acquisitions or retirements for value of Equity Interests made in lieu
of withholding taxes in connection with any exercise or exchange of warrants, options or
rights to acquire Equity Interests;




     (7) payments or distributions to dissenting shareholders pursuant to applicable law in
connection with a merger, consolidation or transfer of assets that complies with the
provisions of Section 5.01 hereof;




     (8) cash payments in lieu of the issuance of fractional shares;




     (9) so long as no Default or Event of Default has occurred and is continuing, the
declaration and payment of regularly scheduled or accrued dividends to holders of any class
or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company,
or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each
case issued after the Issue Date in accordance with the Consolidated Interest Coverage Ratio
test described in Section 4.09(a) hereof; and



52









 






     (10) Restricted Payments, so long as (A) no Default or Event of Default has occurred
and is continuing, and (B) the aggregate amount of payments made under this clause (10) do
not exceed $40.0 million in any fiscal year of the Company.



     (c) In determining the aggregate amount of Restricted Payments made in accordance with Section
4.07(a)(3) above, amounts expended pursuant to clauses (2), (3), (4), (6), (7), (8) and (9) of
Section 4.07(b) shall be excluded from the calculation, and amounts expended pursuant to clauses
(1), (5) and (10) of Section 4.07(b) shall be included in the calculation.



     (d) In any fiscal year of the Company, no Restricted Payment may be made pursuant to Section
4.07(a) hereof unless and until $40.0 million of Restricted Payments have been made pursuant to
clause (10) of Section 4.07(b) hereof in such fiscal year.



     (e) The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted
Subsidiary if such designation would not cause a Default and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. For purposes of making such
determination, all outstanding Investments by the Company and its Restricted Subsidiaries (except
to the extent repaid in cash) in the Subsidiary so designated will be deemed to be Restricted
Payments at the time of such designation. All such outstanding Investments will be deemed to
constitute Investments in an amount equal to the greater of (1) the net book value of such
Investments at the time of such designation and (2) the fair market value of such Investments at
the time of such designation. Such designation will only be permitted if such Restricted Payment
would be permitted at such time.



     (f) The amount of all Restricted Payments (other than cash) shall 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 non-cash Restricted Payment shall be determined in the
manner contemplated by the definition of the term “fair market value.”



Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries.




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




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




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




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



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




     (1) agreements or instruments governing Existing Indebtedness or Capital Stock as in
effect on the Issue Date and any amendments, modifications, restatements, renewals,
increases, supplements, refundings, replacements or refinancings of those agreements or
instruments; provided that the amendments, modifications, restatements, renewals, increases,
supplements,



53









 







refundings, replacements or refinancings are no more restrictive, taken as a whole,
with respect to such dividend and other payment restrictions than those contained in those
agreements or instruments on the Issue Date;




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




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




     (4) 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
(except to the extent such Indebtedness was incurred in connection with or in contemplation
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
permitted by the terms of this Indenture to be incurred;




     (5) any encumbrance or restriction consisting of customary non-assignment provisions
(including provisions forbidding subletting) in leases governing leasehold interests to the
extent such provisions restrict the transfer of the lease, the property or assets leased
thereunder or the other interests therein;




     (6) purchase money obligations for property or assets acquired in the ordinary course
of business and Capital Lease Obligations that impose restrictions on the property or assets
purchased or leased of the nature described in clause (3) of Section 4.08(a) hereof;




     (7) customary provisions in bona fide contracts for the sale of property or assets;




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




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




     (10) any encumbrance or restriction contained in the terms of any Indebtedness or
preferred stock, or any agreement pursuant to which such Indebtedness or preferred stock was
incurred or issued, if such encumbrance or restriction will not materially affect the
Company’s ability to make principal or interest payments on the Notes, as determined in good
faith by the Board of Directors, whose determination shall be conclusive;




     (11) any encumbrance or restriction under any Credit Facility of a Foreign Subsidiary
of the Company;




     (12) 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 or preferred stock being refinanced; and




     (13) secured Indebtedness that limits the right of the debtor to dispose of the assets
securing such Indebtedness and any related encumbrance or restriction contained in security
agreements, mortgages or purchase money agreements.



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Section 4.09 Incurrence of Indebtedness and Issuance of Disqualified Stock.




     (a) The Company will not, and will 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” or an “incurrence”) any
Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and
will not permit any of its Restricted Subsidiaries to issue any Disqualified Stock; provided,
however, that the Company or any Guarantor may incur Indebtedness (including Acquired Debt) or
issue Disqualified Stock if the Consolidated Interest 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
or the Disqualified Stock had been incurred or issued at the beginning of such four-quarter period.



     (b) Notwithstanding the foregoing, the provisions of Section 4.09(a) hereof will not prohibit
the incurrence of any item of Permitted Indebtedness.



     (c) The Company will not incur, and will not permit any Guarantor to incur, any Indebtedness
(including Permitted Indebtedness) that is contractually subordinated in right of payment to any
other Indebtedness of the Company or such Guarantor, unless such Indebtedness is also contractually
subordinated in right of payment to the Notes and the applicable Subsidiary Guarantee on
substantially identical terms; provided, however, that solely for the avoidance of doubt and
without any other implication, no Indebtedness of the Company or any Guarantor will be deemed to be
contractually subordinated in right of payment to any other Indebtedness of such Person solely by
virtue of being unsecured or by virtue of being secured on a junior priority basis.



     (d) For purposes of determining compliance with this Section 4.09, in the event that an item
of proposed Indebtedness or Disqualified Stock meets the criteria of more than one of the
categories contained in clauses (1) through (14) of the definition of Permitted Indebtedness, or is
entitled to be incurred pursuant to Section 4.09(a) hereof, the Company will be permitted to
classify all or a portion of such item of Indebtedness or Disqualified Stock on the date of its
incurrence or issuance, or later reclassify all or a portion of such item of Indebtedness or
Disqualified Stock, in any manner that complies with this Section 4.09. Indebtedness under Credit
Facilities outstanding on the date on which Notes are first issued and authenticated under this
Indenture will initially be deemed to have been incurred on such date in reliance on the exception
provided by clause (1) of the definition of Permitted Indebtedness. The accrual of interest, the
accumulation of 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 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 Consolidated Interest Expense of the Company as accrued. Notwithstanding
any other provision of this Section 4.09, the maximum amount of Indebtedness that the Company or
any Restricted Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as a result of fluctuations in exchange rates or currency values.



     (e) The amount of any Indebtedness outstanding as of any date will be:




     (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with
original issue discount;



55









 






     (2) in respect of Indebtedness of another Person secured by a Lien on the assets of the
specified Person, the lesser of:




     (A) the fair market value of such assets at the date of determination; and




     (B) the amount of the Indebtedness of the other Person; and




     (3) the principal amount of the Indebtedness, in the case of any other Indebtedness.



Section 4.10 Asset Sales.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an
Asset Sale (excluding an Event of Loss for this purpose) unless:




     (1) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise disposed of; and




     (2) at least 75% of the consideration received by the Company or such Restricted
Subsidiary, as the case may be, from the Asset Sale and all other Asset Sales since the
Issue Date is in the form of (A) cash or Cash Equivalents, (B) properties and capital assets
to be used by the Company or any Restricted Subsidiary in the Principal Business, (C)
Capital Stock of a Person engaged in the Principal Business which becomes a Restricted
Subsidiary of the Company or (D) any combination thereof (collectively the “Cash
Consideration”);


provided, however, that the following are deemed to be cash for purposes of this provision: the
amount of (a) any liabilities (as shown on the Company’s or such Restricted Subsidiary’s most
recent balance sheet) of the Company or such Restricted Subsidiary (other than contingent
liabilities and liabilities that are by their terms subordinated to the Notes or any Subsidiary
Guarantee) that are assumed by the transferee of any such assets pursuant to (1) a customary
novation agreement that releases the Company or such Restricted Subsidiary from further liability
or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the
transferee or its parent company to indemnify and hold harmless the Company or such Restricted
Subsidiary from and against any loss, liability or cost in respect of such assumed liability on
customary terms and (b) any non-Cash Consideration received by the Company or such Restricted
Subsidiary from such transferee that is converted by the Company or such Restricted Subsidiary into
cash within 180 days of the receipt thereof (but only to the extent of the cash received).




     Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Company or any
such Restricted Subsidiary may apply such an amount equal to those Net Proceeds, at its option, to:




     (1) prepay, repay, defease, redeem, purchase or otherwise retire any Senior
Indebtedness, and, if the Senior Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto;




     (2) make a capital expenditure; or




     (3) acquire assets used in the Principal Business or to acquire all or substantially
all of the assets of, or any Capital Stock of, another Person engaged in the Principal
Business.



     Notwithstanding the foregoing, if 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) enters
into a



56









 







binding written agreement irrevocably committing the Company or such Restricted Subsidiary to
an application of funds of the kind described in clause (2) or (3) of the preceding paragraph, and
as to which the only condition to closing is the receipt of required governmental approvals, the
Company or such Restricted Subsidiary shall be deemed not to be in violation of the preceding
paragraph. Any Net Proceeds that are applied pursuant to clause (2) or (3) of the preceding
paragraph pursuant to any such binding agreement shall be deemed to have been applied for such
purpose within such 365-day period so long as they are so applied within two years after the date
of receipt of such Net Proceeds.



     Pending the final application of any such Net Proceeds, the Company or any such Restricted
Subsidiary may temporarily reduce outstanding revolving credit borrowings or otherwise invest such
Net Proceeds in any manner that is not prohibited by this Indenture.



     An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as
provided in the preceding paragraphs will constitute “Excess Proceeds.” When the aggregate amount
of Excess Proceeds exceeds $25.0 million, the Company shall make, in accordance with Section 3.09
hereof, an Asset Sale Offer to all Holders of the Notes and all holders of Pari Passu Indebtedness
containing provisions similar to those set forth in this Section 4.10 with respect to offers to
purchase or redeem with the proceeds of sales of assets, to purchase the maximum principal amount
of Notes and such Pari Passu Indebtedness that may be purchased out of the Excess Proceeds. The
offer price in any Asset Sale Offer will be equal to 100% of the principal amount of the
Indebtedness to be purchased plus accrued and unpaid interest to the date of purchase, subject to
the rights of Holders on the relevant record date to receive interest due on an interest payment
date that is on or prior to the date of purchase, and will be payable in cash, in accordance with
the procedures set forth in this Indenture, in the case of the Notes, or in the instruments
governing the terms of the Pari Passu Indebtedness, in the case of such Pari Passu Indebtedness;
provided, however, that, if the Company is required to apply such Excess Proceeds to repurchase, or
to offer to repurchase, any Pari Passu Indebtedness, the Company shall only be required to offer to
repurchase the maximum principal amount of Notes that may be purchased out of the amount of such
Excess Proceeds multiplied by a fraction, the numerator of which is the aggregate principal amount
of Notes outstanding and the denominator of which is the aggregate principal amount of Notes
outstanding plus the aggregate principal amount of such Pari Passu Indebtedness outstanding. To
the extent that the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer is
less than the amount that the Company is required to repurchase, the Company may use the difference
between such amounts for purposes not otherwise prohibited by this Indenture. If the aggregate
principal amount of Notes surrendered by holders thereof exceeds the amount that the Company is
required by this Section 4.10 to repurchase, the Trustee shall select the Notes to be purchased on
a pro rata basis. Upon completion of such Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.



     Notwithstanding the foregoing, the sale, conveyance or other disposition of all or
substantially all of the properties or assets of the Company and its Subsidiaries, taken as a
whole, will be governed by the provisions of Section 4.15 hereof and/or the provisions of Section
5.01 hereof and not by the provisions of this Section 4.10.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent those laws and regulations are applicable in
connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with Section 3.09 or this Section 4.10,
or compliance with Section 3.09 or this Section 4.10 would constitute a violation of any such laws
or regulations, the Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under Section 3.09 or this Section 4.10 by
virtue of such compliance.



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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 (each of the foregoing, an “Affiliate Transaction”), unless:




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




     (2) the 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 certifying that such Affiliate Transaction
complies with clause (1) of 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; and




     (B) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $50.0 million, an
opinion as to the fairness to the Company or the relevant Subsidiary of such
Affiliate Transaction from a financial point of view issued by an accounting,
appraisal or investment banking firm that is, in the judgment of the Board of
Directors, qualified to render such opinion and is independent with respect to the
Company.



     (b) Notwithstanding Section 4.11(a) hereof, the following shall not be deemed to be Affiliate
Transactions:




     (1) reasonable fees and compensation paid to or for the benefit of any employee,
officer or director of the Company or any of its Restricted Subsidiaries, and any employment
agreement, employee benefit plan, officer or director indemnification agreement or any
similar arrangement entered into by the Company or any of its Subsidiaries existing on the
Issue Date, or entered into thereafter in the ordinary course of business, and any
indemnities or other transactions permitted or required by bylaw, statutory provisions or
any of the foregoing agreements, plans or arrangements;




     (2) transactions between or among the Company and its 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) any Permitted Investments and any Restricted Payments that do not violate the
provisions of Section 4.07 hereof;




     (5) any issuance of Equity Interests (other than Disqualified Stock) of the Company to,
or receipt of any capital contribution from, any Affiliate of the Company;



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     (6) any contracts, agreements or understandings existing as of the Issue Date and any
amendment thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto or any replacement agreement thereof so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders of the Notes in any
material respect than the original agreement as in effect on the Issue Date);




     (7) loans or advances to employees in the ordinary course of business not to exceed
$1.0 million at any one time outstanding;




     (8) transactions with customers, clients, suppliers, joint venture partners or
purchasers or sellers of goods or services, in each case in the ordinary course of business
(including pursuant to joint venture agreements) on terms substantially similar to those
contained in similar contracts entered into by the Company or any Restricted Subsidiary and
third parties, or if neither the Company nor any Restricted Subsidiary has entered into a
similar contract with a third party, that the terms are no less favorable than those
available from third parties on an arm’s length basis, as determined by the Board of
Directors in its reasonable good faith judgment; and




     (9) in the case of any contract, agreement or understanding (or amendment thereto)
entered into with one or more Affiliates of the Company, whether or not in the ordinary
course of business, that is of a type with respect to which investment banking firms of
recognized industry standing generally do not render fairness opinions, if the Company
delivers to the Trustee a resolution of the Board of Directors set forth in an Officers’
Certificate certifying (i) that such Affiliate Transaction or series of related Affiliate
Transactions complies with clause (1) of Section 4.11(a) hereof and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved by a majority of
the disinterested members of the Board of Directors and (ii) either (x) the Company has used
commercially reasonable efforts to obtain a fairness opinion with respect to such Affiliate
Transaction or series of related Affiliate Transactions from investment banking firms of
recognized industry standing and was unable to obtain a fairness opinion or (y) a majority
of the disinterested members of the Board of Directors has determined that investment
banking firms of recognized industry standing generally would not render fairness opinions
with respect to such transaction.



Section 4.12 Liens.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, create,
incur, assume or suffer to exist, any Lien (except Permitted Liens) on any asset owned on the Issue
Date or acquired after the Issue Date, securing:




     (1) any Indebtedness (including any Attributable Indebtedness) of the Company or such
Restricted Subsidiary (if it is not also a Guarantor), unless prior to, or contemporaneously
therewith, the Notes are equally and ratably secured; or




     (2) any Indebtedness (including any Attributable Indebtedness) of any Guarantor, unless
prior to, or contemporaneously therewith, the Subsidiary Guarantee of such Guarantor is
equally and ratably secured;


provided, however, that if such Indebtedness is expressly subordinated to the Notes or the
Subsidiary Guarantees, the Lien securing such Indebtedness will be subordinated and junior to the
Lien securing the Notes or the Subsidiary Guarantees, as the case may be, with the same relative
priority as such Indebtedness has with respect to the Notes or the Subsidiary Guarantees.




59









 








Section 4.13 Line of Business.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, engage in any
business or activity other than the Principal Business, except to the extent as would not be
material to the Company and its Subsidiaries considered as one enterprise.



Section 4.14 Corporate Existence.




     Subject to Article 5 and Section 10.04 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect:




     (1) its corporate existence, and the corporate, partnership or other existence of each
of its Restricted Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such Restricted
Subsidiary; and




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



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 Company to
repurchase all or any part (equal to $2,000 or integral multiples of $1,000 in excess thereof) of
that Holder’s Notes pursuant to the offer described below (the “Change of Control Offer”) on the
terms set forth in this Indenture. Pursuant to such offer, the Company will offer a Change of
Control Payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus
accrued and unpaid interest (including Special 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 an interest payment date that is on or prior to such date of purchase (the “Change of
Control Payment”). Within 30 days following any Change of Control, the Company 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 30 days
and no later than 60 days from the date such notice is mailed (the “Change of Control
Payment Date");




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




     (4) that, unless the Company defaults in the payment of the Change of Control Payment,
all Notes accepted for payment pursuant to the Change of Control Offer will cease to accrue
interest after the Change of Control Payment Date;




     (5) that Holders electing to have any Notes purchased pursuant to a Change of Control
Offer will be required to surrender the Notes, with the form entitled “Option of Holder to
Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the
Paying



60









 







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, electronic image scan, facsimile
transmission or letter setting forth the name of the Holder, the principal amount of Notes
delivered for purchase, and a statement that such Holder is withdrawing his election to have
the Notes purchased; and




     (7) that Holders whose Notes are being purchased only in part will be issued new Notes
equal in principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to $2,000 in principal amount or an integral multiple of
$1,000 in excess thereof.



     The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change in 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.



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




     (1) accept for payment all Notes or portions of Notes properly tendered and not
properly withdrawn 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 and not properly withdrawn; and




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



     The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of
Control Payment for such Notes (or, if all the Notes are then in global form, it will make such
payment through the facilities of DTC), and the Trustee will promptly authenticate and mail (or
cause to be transferred by book entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes surrendered, if any; provided that each new Note will be in a
principal amount of $2,000 or integral multiples of $1,000 in excess thereof.



     The Company will publicly announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Payment Date.



     (c) In the event that Holders of not less than 90% of the aggregate principal amount of the
outstanding Notes accept a Change of Control Offer and the Company purchases all of the Notes held
by such Holders, the Company will have the right, in accordance with Section 3.07(d) hereof, upon
not less than 30 nor more than 60 days’ prior notice, given not more than 30 days following the
purchase pursuant to the Change of Control Offer described in Section 4.15 (a) hereof, to redeem
all of the Notes that remain outstanding following such purchase at a redemption price equal to
101% of the aggregate principal



61









 







amount of Notes repurchased plus accrued and unpaid interest (including Special Interest, if
any) on the Notes that remain outstanding to the date of redemption, subject to the right of the
Holders on the relevant record date to receive interest due on an interest payment date that is on
or prior to the redemption date.



     (d) The Company 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 Indenture applicable to a Change of
Control Offer made by the Company 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 3.03
hereof, unless and until there is a default in payment of the applicable redemption price.
Notwithstanding anything to the contrary contained in this Indenture, a Change of Control Offer 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 Sale-and-Leaseback Transactions.




     The Company will not, and will not permit any of its Restricted Subsidiaries to, enter into
any sale-and-leaseback transaction; provided that the Company or any Restricted Subsidiary, as
applicable, may enter into a sale-and-leaseback transaction if:




     (1) the Company or such Restricted Subsidiary could have




          (a) incurred Indebtedness in an amount equal to the Attributable Indebtedness relating
to such sale-and-leaseback transaction pursuant to the Consolidated Interest Coverage Ratio
test set forth in Section 4.09 hereof and




          (b) incurred a Lien to secure such Indebtedness pursuant to Section 4.12 hereof;




     (2) the gross cash proceeds of such sale-and-leaseback transaction are at least equal
to the fair market value of the property that is the subject of such sale-and-leaseback
transaction; and




     (3) the disposition of assets in such sale-and-leaseback transaction is permitted by,
and the Company or the applicable Restricted Subsidiary applies the proceeds of such
transaction in compliance with, Section 4.10 hereof.



Section 4.17 Payments for Consent.




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



Section 4.18 Additional Guarantors.




     If the Company or any of its Restricted Subsidiaries acquires or creates another Domestic
Restricted Subsidiary after the Issue Date that incurs Indebtedness under a Credit Facility or
guarantees any other Indebtedness of the Company, then the Company will cause that newly acquired
or created Domestic Restricted Subsidiary to become a Guarantor by executing a supplemental
indenture and



62









 







delivering an Opinion of Counsel pursuant to Section 9.06 hereof within 10 business days of
the date on which it was acquired or created. Notwithstanding the preceding, any Subsidiary
Guarantee of a Guarantor that was incurred pursuant to this Section 4.18 as a result of its
guarantee or incurrence of any such Indebtedness shall be released upon the release or discharge of
the guarantee, or the repayment of the Indebtedness under a Credit Facility, that resulted in the
creation of such Subsidiary Guarantee in the first instance, except a discharge or release by, or
as a result of payment under, such guarantee. The form of such supplemental indenture is attached
as Exhibit F hereto.



Section 4.19 Changes in Covenants when Notes Rated Investment Grade.




     During any period beginning on a date when the Notes have an Investment Grade Rating and no
Default or Event of Default shall have occurred and be continuing, and continuing until the next
subsequent Reinstatement Date (as defined below), the Company and its Restricted Subsidiaries will
not be subject to the following provisions of this Indenture:




     (1) Section 4.07 hereof;




     (2) Section 4.08 hereof;




     (3) Section 4.09 hereof;




     (4) Section 4.10 hereof;




     (5) Section 4.11 hereof;




     (6) Section 4.13 hereof;




     (7) clauses (1)(a) and (3) of Section 4.16 hereof; and




     (8) clause (4) of Section 5.01 hereof;


(collectively, the “Suspended Covenants”); provided that if the Company and its Restricted
Subsidiaries are not subject to the Suspended Covenants for any period of time as a result of the
preceding portion of this sentence and, at any subsequent date the Notes do not have an Investment
Grade Rating, then the Company and its Restricted Subsidiaries will on such date immediately become
again subject to the Suspended Covenants, subject to the terms, conditions and obligations set
forth in this Indenture (each such date of reinstatement being referred to as a “Reinstatement
Date”). During any period that the Suspended Covenants have been suspended pursuant to the
preceding sentence, the Board of Directors may not designate any of the Company’s Restricted
Subsidiaries as Unrestricted Subsidiaries pursuant to the definition of “Unrestricted Subsidiary.”
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 covenant had been in effect during the entire period of time from which the Notes are issued;
provided, however, no Restricted Payments made by the Company or any Restricted Subsidiary during
such period will constitute a Default or Event of Default.




63









 








ARTICLE 5

SUCCESSORS




Section 5.01 Merger, Consolidation, or Sale of Assets.




     The Company may not in one or more related transactions, consolidate or merge with or into
(whether or not the Company is the surviving Person), or sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the Company and its
Restricted Subsidiaries taken as a whole to, another Person unless:




     (1) either:




     (A) the Company is the surviving corporation; or




     (B) the Person formed by or surviving any such consolidation or merger (if
other than the Company) or to which such sale, assignment, transfer, conveyance or
other disposition shall have been made is organized or existing under the laws of
the United States, any state thereof or the District of Columbia;




     (2) the Person formed by or surviving any such consolidation or merger (if other than
the Company) or the Person to which such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all of the obligations of the Company under the
Notes, this Indenture and (if still then in effect) the Registration Rights Agreement
pursuant to one or more written agreements;




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




     (4) except in the case of a merger of the Company with or into a Restricted Subsidiary
of the Company, the Company or the Person formed by or surviving any such consolidation or
merger (if other than the Company), or the Person to which such sale, assignment, transfer,
conveyance or other disposition shall have been made will, at the time of such transaction
and after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Consolidated Interest Coverage Ratio test set forth
in Section 4.09(a) hereof.



     In addition, the Company may not, directly or indirectly, lease all or substantially all of
its properties or assets, in one or more related transactions, to any other Person.



     Clauses (3) and (4) of the first paragraph of this Section 5.01 will not apply to:




     (1) a merger of the Company with an Affiliate solely for the purpose of reincorporating
the Company in another jurisdiction; or




     (2) any consolidation or merger, or any sale, assignment, transfer, conveyance or other
disposition of properties or assets between or among the Company and its Restricted
Subsidiaries that are Guarantors.



64









 





Section 5.02 Successor Corporation Substituted.




     Upon any consolidation or merger, or any sale, transfer, assignment, conveyance or other
disposition of all or substantially all of the properties or assets of the Company in accordance
with the first paragraph of Section 5.01 hereof, the successor Person formed by such consolidation
or into or with which the Company is merged or to which such sale, transfer, assignment, conveyance
or other disposition is made, will succeed to and be substituted for the Company, and may exercise
every right and power of the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein. When the successor assumes all of the Company’s
obligations under this Indenture, the Company will be discharged from those obligations.



ARTICLE 6

DEFAULTS AND REMEDIES




Section 6.01 Events of Default.




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




     (1) default for 30 days in the payment when due of interest (including Special
Interest, if any) on the Notes;




     (2) default in the payment when due of the principal of, or premium on, if any, the
Notes;




     (3) failure by the Company or any of its Restricted Subsidiaries to comply with the
provisions of Section 5.01 hereof or to consummate the purchase of Notes when required
pursuant to Sections 4.10 or 4.15 hereof;




     (4) failure by the Company for 90 days after notice to the Company by the Trustee or
the holders of at least 25% in aggregate principal amount of the Notes then outstanding to
comply with the provisions of Section 4.03 hereof;




     (5) failure by the Company or any of its Subsidiaries for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding to comply with any of the other covenants applicable to the Company
or its Subsidiaries in this Indenture or the Notes;




     (6) 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 Issue Date, if that default:




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




     (B) results in the acceleration of such Indebtedness prior to its express
maturity, in each case, unless 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, is less
than $40.0



65









 







million in the aggregate; provided, however, that if, prior to any acceleration
of the Notes, (i) any such Payment Default is cured or waived, (ii) any such
acceleration is rescinded, or (iii) such Indebtedness is repaid during the 10
business day period commencing upon the end of any applicable grace period for such
Payment Default or the occurrence of such acceleration, as applicable, any Default
or Event of Default (but not any acceleration of the Notes) caused by such Payment
Default or acceleration shall automatically be rescinded, so long as such rescission
does not conflict with any judgment, decree or applicable law;




     (7) any final judgment or decree (to the extent not covered by insurance) for the
payment of money in excess of $40.0 million is entered against the Company or any of its
Restricted Subsidiaries and is not paid or discharged, and there is any period of 60
consecutive days following entry of such final judgment or decree during which a stay of
enforcement of such final judgment or decree, by reason of pending appeal or otherwise, is
not in effect;




     (8) 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 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 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;




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




     (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 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 unstayed and in effect for 60 consecutive days; or



66









 






     (10) except as permitted by this Indenture, any Subsidiary Guarantee 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 Subsidiary Guarantee.



Section 6.02 Acceleration.




     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.



     Upon any such declaration, the Notes shall become due and payable immediately.



     The Holders of a majority in aggregate principal amount of the Notes then outstanding by
written notice to Company and the Trustee may, on behalf of the Holders of all of the Notes,
rescind an acceleration or waive any continuing Default and its consequences under this Indenture
except a continuing Default in the payment of principal of, premium on, if any, interest or Special
Interest, if any, on, the Notes or in respect of a provision of this Indenture that cannot be
modified or amended without the consent of each Holder.



Section 6.03 Other Remedies.




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



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



Section 6.04 Waiver of Past Defaults.




     The Holders of a majority in aggregate principal amount of the then outstanding Notes by
written notice to the Company and the Trustee may, on behalf of the Holders of all of the Notes
rescind an acceleration or waive any continuing Default and its consequences hereunder, except a
continuing Default in the payment of the principal of, premium on, if any, interest and Special
Interest, if any, on, the Notes or in respect of a covenant that cannot be modified or amended
without the consent of each Holder; provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.



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Section 6.05 Control by Majority.




     Holders of a majority in aggregate principal amount of the then outstanding Notes may direct
the time, method and place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture that the Trustee determines may be
unduly prejudicial to the rights of other Holders of Notes or that may involve the Trustee in
personal liability.



Section 6.06 Limitation on Suits.




     Except to enforce the right to receive payment of principal, premium (if any) or interest
(including Special Interest, if any) when due, no Holder of a Note may pursue any remedy with
respect to this Indenture or the Notes unless:




     (1) such Holder has previously given to the Trustee written 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 reasonable security or indemnity against any
cost, liability or expense;




     (4) the Trustee has not complied with such request within 60 days after receipt thereof
and the offer of security or indemnity; and




     (5) Holders of a majority in aggregate principal amount of the outstanding Notes have
not given the Trustee a direction inconsistent with such request within such 60-day period.



     A Holder of a Note may not use this Indenture to prejudice the rights of another Holder of a
Note or to obtain a preference or priority over another Holder of a Note.



Section 6.07 Rights of Holders of Notes to Receive Payment.




     Notwithstanding any other provision of this Indenture, the right of any Holder of a Note to
receive payment of principal of, premium on, if any, interest and Special 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.



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 Company for the whole amount of principal of, premium on, if any, interest and Special
Interest, if any, on, the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.



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Section 6.09 Trustee May File Proofs of Claim.




     The Trustee is authorized to file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing 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, its agents and attorneys for amounts due under Section 7.07
hereof, including payment of all compensation, expenses and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of collection;




     Second: to Holders of Notes for amounts due and unpaid on the Notes for principal,
premium, if any, interest and Special 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, interest and Special Interest, if any, respectively; and




     Third: to the Company or to such party as a court of competent jurisdiction shall
direct.



     The Trustee may fix a record date and payment date for any payment to Holders of Notes
pursuant to this Section 6.10.



Section 6.11 Undertaking for Costs.




     In any suit for the enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to



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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 this
Indenture. However, the Trustee will examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.



     (c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:




     (1) this paragraph does not limit the effect of 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 and
powers under this Indenture at the request of any Holders, unless such Holder has offered to the
Trustee reasonable security and indemnity satisfactory to it against any cost, 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 Company. 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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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
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 written advice of such counsel or any Opinion of Counsel will be
full and complete authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.



     (c) The Trustee may act through its attorneys and agents and will not be responsible for the
misconduct or negligence of any agent appointed with due care.



     (d) The Trustee will not be liable for any action it takes 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 the Company will be sufficient if signed by an Officer of the Company.



     (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 reasonable indemnity or security satisfactory to it against the costs,
liabilities and expenses that might be incurred by it in compliance with such request or direction.



Section 7.03 Individual Rights of Trustee.




     The Trustee in its individual or any other capacity may become the owner or pledgee of Notes
and may otherwise deal with the Company or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) after a Default has occurred and is continuing, it must eliminate
such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this
Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like rights
and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.



Section 7.04 Trustee’s Disclaimer.




     The Trustee will not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the Company’s use of the
proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any
provision of this Indenture, it will not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it will not be responsible for any
statement or recital herein or any statement in the Notes or any other document in connection with
the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.



Section 7.05 Notice of Defaults.




     If a Default or Event of Default occurs and is continuing and if it is known to the Trustee,
the Trustee will mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it



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occurs. Except in the case of a Default or Event of Default in payment of principal of,
premium on, if any, interest or Special 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 of the Notes.



Section 7.06 Reports by Trustee to Holders of the Notes.




     (a) Within 60 days after each May 15 beginning with the May 15 following the date of this
Indenture, and for so long as Notes remain outstanding, the Trustee will mail to the Holders of the
Notes a brief report dated as of such reporting date that complies with TIA § 313(a) (but if no
event described in TIA § 313(a) has occurred within the twelve months preceding the reporting date,
no report need be transmitted). The Trustee also will comply with TIA § 313(b)(2). The Trustee
will also transmit by mail all reports as required by TIA § 313(c).



     (b) A copy of each report at the time of its mailing to the Holders of Notes will be mailed by
the Trustee to the Company and filed by the Trustee with the SEC and each stock exchange on which
the Notes are listed in accordance with TIA § 313(d). The Company will promptly notify the Trustee
when the Notes are listed on any stock exchange.



Section 7.07 Compensation and Indemnity.




     (a) The Company will pay to the Trustee from time to time reasonable compensation 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 Company will reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses will include the
reasonable compensation, disbursements and expenses of the Trustee’s agents and counsel.



     (b) The Company and the Guarantors will indemnify the Trustee against any and all costs,
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 costs and expenses of enforcing
this Indenture against the Company and the Guarantors (including this Section 7.07) and defending
itself against any claim (whether asserted by the Company, 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 cost, liability or expense may be attributable to its
negligence or bad faith. The Trustee will notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company will not relieve the Company
or any of the Guarantors of its/their obligations hereunder. The Company or such Guarantor will
defend the claim and the Trustee will cooperate in the defense. The Trustee may have separate
counsel and the Company will pay the reasonable fees and expenses of such counsel. Neither the
Company nor any Guarantor need pay for any settlement made without its consent, which consent will
not be unreasonably withheld.



     (c) The obligations of the Company and the Guarantors under this Section 7.07 will survive the
satisfaction and discharge of this Indenture.



     (d) To secure the Company’s and the Guarantors’ payment obligations in this Section 7.07, 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, premium on, if any, interest and Special
Interest, if any, on, particular Notes. Such Lien will survive the satisfaction and discharge of
this Indenture.



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     (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.



     (f) The Trustee will comply with the provisions of TIA § 313(b)(2) to the extent applicable.



Section 7.08 Replacement of Trustee.




     (a) A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section
7.08.



     (b) The Trustee may resign in writing at any time and be discharged from the trust hereby
created by so notifying the Company. The Holders of a majority in aggregate principal amount of
the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Company in
writing. The Company may remove the Trustee if:




     (1) the Trustee fails to comply with Section 7.10 hereof;




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




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




     (4) the Trustee becomes incapable of acting.



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



     (d) If a successor Trustee does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company, or the Holders of at least 10% in
aggregate principal amount of the then outstanding Notes may petition any court of competent
jurisdiction for the appointment of a successor Trustee.



     (e) If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10 hereof, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.



     (f) A successor Trustee will deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon, the resignation or removal of the retiring Trustee will
become effective, and the successor Trustee will have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee will mail a notice of its succession to
Holders. The retiring Trustee will promptly transfer all property held by it as Trustee to the
successor Trustee; provided all sums owing to the Trustee hereunder have been paid and subject to
the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company’s obligations under Section 7.07 hereof will continue for the
benefit of the retiring Trustee.



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Section 7.09 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 7.10 Eligibility; Disqualification.




     There will at all times be a Trustee hereunder that is a corporation organized and doing
business under the laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to supervision or examination
by federal or state authorities and that has a combined capital and surplus of at least $100.0
million as set forth in its most recent published annual report of condition.



     This Indenture will always have a Trustee who satisfies the requirements of TIA § 310(a)(1),
(2) and (5). The Trustee is subject to TIA § 310(b).



Section 7.11 Preferential Collection of Claims Against Company.




     The Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA §
311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent
indicated therein.



ARTICLE 8

LEGAL DEFEASANCE AND COVENANT DEFEASANCE




Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.




     The Company may at any time, at the option of its Board of Directors evidenced by a resolution
set forth in an Officers’ Certificate, elect to have either Section 8.02 or 8.03 hereof be applied
to all outstanding Notes upon compliance with the conditions set forth below in this Article 8.



Section 8.02 Legal Defeasance and Discharge.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.02, the Company 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 Subsidiary Guarantees) on the date the conditions
set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal
Defeasance means that the Company and the Guarantors will be deemed to have paid and discharged the
entire Indebtedness represented by the outstanding Notes (including the Subsidiary 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) below, and to have
satisfied all their other obligations under such Notes, the Subsidiary Guarantees and this
Indenture (and the Trustee, on demand of and at the expense of the Company, 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, premium on, if any, interest or Special Interest, if any, on, such Notes when
such payments are due from the trust referred to in Section 8.04 hereof;



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




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




     (4) this Article 8.



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



Section 8.03 Covenant Defeasance.




     Upon the Company’s exercise under Section 8.01 hereof of the option applicable to this Section
8.03, the Company 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/its obligations under the
covenants contained in Sections 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 4.16, 4.17, 4.18
and 4.19 hereof 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 Subsidiary Guarantees, the Company 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 Indenture and such
Notes and Subsidiary Guarantees will be unaffected thereby. In addition, upon the Company’s
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 and Sections 6.01(8) and (9) hereof (but only with respect to Subsidiaries of the Company)
will not constitute Events of Default.



Section 8.04 Conditions to Legal or Covenant Defeasance.




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




     (1) the Company 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
thereof, in such 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, premium on, if any, interest and Special Interest, 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 Company 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 an election under Section 8.02 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that:



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     (A) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling; or




     (B) since the Issue Date, there has been a change in the applicable federal
income tax law,




in either case 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 federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;




     (3) in the case of an election under Section 8.03 hereof, the Company must deliver to
the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will
not recognize income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal 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 shall have occurred and be 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);




     (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) to which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound;




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




     (7) the Company must deliver to the Trustee an Officers’ Certificate stating that all
conditions precedent set forth in clauses (1) through (6) of this Section 8.04 have been
complied with; and




     (8) the Company must deliver to the trustee an Opinion of Counsel (which opinion of
counsel may be subject to customary assumptions, qualifications and exclusions), stating
that all conditions precedent set forth in clauses (2), (3) and (5) of this Section 8.04
have been complied with; provided that the Opinion of Counsel with respect to clause (5) of
this Section 8.04 may be to the knowledge of such counsel.


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 the Company acting as



76









 







Paying Agent) as the Trustee may determine, to the Holders of such Notes of all sums due and
to become due thereon in respect of principal, premium, if any, interest and Special Interest, if
any, but such money need not be segregated from other funds except to the extent required by law.



     The Company 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 Company from time to time upon the request of the Company any money or non-callable Government
Securities held by it 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 Company.




     Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium on, if any, interest or Special Interest, if
any, on, any Note and remaining unclaimed for two years after such principal, premium, if any,
interest and Special Interest, if any, has become due and payable shall be paid to the Company on
its request or (if then held by the Company) will be discharged from such trust; and the Holder of
such Note will thereafter be permitted to look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company 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
Company 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 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Company.



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 Company’s and the Guarantors’ obligations under this
Indenture and the Notes and the Subsidiary 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 Company makes any payment of principal of,
premium on, if any, interest or Special Interest, if any, on, any Note following the reinstatement
of its obligations, the Company will be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.




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ARTICLE 9

AMENDMENT, SUPPLEMENT AND WAIVER




Section 9.01 Without Consent of Holders of Notes.




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




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




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




     (3) to provide for the assumption of the Company’s or a Guarantor’s obligations to the
Holders of the Notes and Subsidiary Guarantees by a successor to the Company 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 of the Notes or that does not adversely affect the legal rights hereunder of any
Holder;




     (5) to secure the Notes or the Subsidiary Guarantees pursuant to the requirements of
Section 4.12 hereof;




     (6) add any Guarantor to or release any Guarantor from its Subsidiary Guarantee, in
each case as provided in this Indenture;




     (7) to conform the text of this Indenture or the Notes to any provision of the
“Description of Notes” section of the Company’s Offering Memorandum dated June 5, 2009,
relating to the initial offering of the Notes, 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 Subsidiary Guarantees or the Notes;




     (8) provide for the issuance of Additional Notes or a successor Trustee in respect of
the Notes in accordance with the provisions of this Indenture; or




     (9) to comply with requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA.



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon receipt by the
Trustee of the documents described in Section 7.02 hereof, the Trustee will join with the Company
and the Guarantors in the execution of any amended or supplemental indenture authorized or
permitted by the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee will not be obligated to enter into
such amended or supplemental indenture that affects its own rights, duties or immunities under this
Indenture or otherwise.



Section 9.02 With Consent of Holders of Notes.




     Except as provided below in this Section 9.02, the Company, the Guarantors and the Trustee may
amend or supplement this Indenture and the Notes and the Subsidiary Guarantees with the consent of
the Holders of at least a majority in aggregate principal amount of the then outstanding Notes
(including,



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without limitation, Additional Notes, if any) voting as a single class (including, without
limitation, consents obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes), and any existing Default or Event of Default or compliance with any provision of
this Indenture or the Notes or the Subsidiary Guarantees may be waived with the consent of the
Holders of a majority in aggregate principal amount of the then outstanding Notes voting as a
single class (including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes).



     Upon the request of the Company accompanied by a resolution of its Board of Directors
authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in Section 9.06 hereof, the
Trustee will join with the Company 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 be necessary for the consent of the Holders of Notes under this Section 9.02 to
approve the particular form of any proposed amendment, supplement or waiver, but it is sufficient
if such consent approves the substance thereof.



     After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company will mail to the Holders of Notes affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, will not, however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a single class may
waive compliance in a particular instance by the Company with any provision of this Indenture or
the Notes or the Subsidiary Guarantees. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by
a non-consenting Holder):




     (1) reduce the principal amount of Notes 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 any of
the provisions with respect to the redemption of the Notes; provided, however, that any
purchase or repurchase of Notes, including pursuant to Sections 4.10 and 4.15 hereof, shall
not be deemed a redemption of the Notes;




     (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, premium on, if
any, interest and Special Interest, 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 Notes and 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, premium on,
if any, interest or Special Interest, if any, on, the Notes;



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     (7) waive a redemption payment with respect to any Note; provided, however, that any
purchase or repurchase of Notes, including pursuant to Sections 4.10 and 4.15 hereof, shall
not be deemed a redemption of the Notes;




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




     (9) make any change in the preceding amendment, supplement and waiver provisions.



Section 9.03 Compliance with Trust Indenture Act.




     Every amendment or supplement to this Indenture or the Notes will be set forth in a amended or
supplemental indenture that complies with the TIA as then in effect.



Section 9.04 Revocation and Effect of Consents.




     Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a
Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of
the consent is not made on any Note. 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 9.05 Notation on or Exchange of Notes.




     The Trustee may place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee
shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.



     Failure to make the appropriate notation or issue a new Note will not affect the validity and
effect of such amendment, supplement or waiver.



Section 9.06 Trustee to Sign Amendments, etc.




     The Trustee will sign any 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. In executing any amended or supplemental indenture, the Trustee will
be entitled to receive and (subject to Section 7.01 hereof) will be fully protected in relying
upon, in addition to the documents required by Section 12.04 hereof, an Officers’ Certificate and
an Opinion of Counsel stating that the execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.



ARTICLE 10

SUBSIDIARY GUARANTEES




Section 10.01. Guarantee.




     (a) Subject to this Article 10, each of the Guarantors hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee
and to the



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Trustee and its successors and assigns, irrespective of the validity and enforceability of
this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that:




     (1) the principal of, premium on, if any, interest and Special Interest, 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, premium on, if any,
interest and Special Interest, if any, on the Notes, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof; and




     (2) in case of any extension of time of payment or renewal of any Notes or any of such
other obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.



     Failing payment when due of any amount so guaranteed or any performance so guaranteed for
whatever reason, 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.



     (b) 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 of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the Company, 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 Company, any right to require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenant that this Subsidiary Guarantee will not be
discharged except by complete performance of the obligations contained in the Notes and this
Indenture.



     (c) If any Holder or the Trustee is required by any court or otherwise to return to the
Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in
relation to either the Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.



     (d) Each Guarantor agrees that it will not be entitled to any right of subrogation in relation
to the Holders in respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each 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 this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any
declaration of acceleration of such obligations as provided in Article 6 hereof, such obligations
(whether or not due and payable) will forthwith become due and payable by the Guarantors for the
purpose of this Subsidiary Guarantee. Each Guarantor that makes a payment will have the right to
seek pro rata contribution from each other Guarantor based on the Adjusted Net Assets of each
Guarantor, so long as the exercise of such right does not impair the rights of the Holders under
the Subsidiary Guarantee.



     Section 10.02. Limitation on Guarantor Liability.



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     Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the
intention of all such parties that the Subsidiary Guarantee of such Guarantor not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Subsidiary Guarantee. To effectuate the foregoing intention, the Trustee, the
Holders and the Guarantors hereby irrevocably agree that the obligations of 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 Subsidiary Guarantee not
constituting a fraudulent transfer or conveyance.



Section 10.03. Execution and Delivery of Subsidiary Guarantee.




     To evidence its Subsidiary Guarantee set forth in Section 10.01 hereof, each Guarantor hereby
agrees that a notation of such Subsidiary 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 Subsidiary 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 Subsidiary Guarantee.



     If an Officer whose signature is on this Indenture or on the notation of Subsidiary Guarantee
no longer holds that office at the time the Trustee authenticates the Note on which a notation of
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee will be valid nevertheless.



     The delivery of any Note by the Trustee, after the authentication thereof hereunder, will
constitute due delivery of the Subsidiary Guarantee set forth in this Indenture on behalf of the
Guarantors.



     In the event that the Company or any of its Restricted Subsidiaries creates or acquires any
Domestic Restricted Subsidiary after the date of this Indenture, if required by Section 4.18
hereof, the Company will cause such Domestic Restricted Subsidiary to comply with the provisions of
Section 4.18 hereof and this Article 10, to the extent applicable.



Section 10.04. Guarantors May Consolidate, etc., on Certain Terms.




     Except as otherwise provided in Section 10.05 hereof, no Guarantor may sell or otherwise
dispose of all or substantially all of its assets to, or consolidate with or merge with or into
(whether or not such Guarantor is the surviving Person), another Person (other than the Company or
a Restricted Subsidiary of the Company), whether or not affiliated with such Guarantor, unless:




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




     (2) either:




          (a) subject to Section 10.05 hereof, the Person acquiring the assets in any such sale
or disposition, or the Person formed by or surviving any such consolidation or merger,
assumes all of the obligations of that Guarantor under this Indenture, its Subsidiary
Guarantee



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and (if then still in effect) the Registration Rights Agreement, pursuant to a
supplemental indenture satisfactory to the Trustee; or




          (b) 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, 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 Subsidiary Guarantee of the Guarantor 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 notations of Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued will in all respects have the same legal rank and
benefit under this Indenture as the Subsidiary Guarantees theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.



     Except as set forth in Articles 4 and 5 hereof, and notwithstanding clauses 2(a) and (b)
above, nothing contained in this Indenture or in any of the Notes will prevent any consolidation or
merger of a Guarantor with or into the Company 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 or another Guarantor.



Section 10.05. Releases.




     (a) In the event of a sale or other disposition, including by way of merger, consolidation or
otherwise, of all or substantially all of the assets or all of the Capital Stock of any Guarantor
to any Person that is not (either before or after giving effect to such transaction) the Company or
a Restricted Subsidiary of the Company, then such Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee, if:




          (1) 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; and



          (2) upon such release, the obligations of such Guarantor in respect of any and all other
guarantees of Indebtedness of the Company or a Guarantor are similarly released.



Upon delivery by the Company 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 Company 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 any Guarantor from
its obligations under its Subsidiary Guarantee.




     (b) In the event the Board of Directors designates a Guarantor to be an Unrestricted
Subsidiary, then such Guarantor will be released and relieved of any obligations under its
Subsidiary Guarantee, provided that such designation is conducted in accordance with the applicable
provisions of the indenture.



     (c) Upon (i) the circumstances described in the second sentence of Section 4.18 hereof, (ii)
Legal Defeasance in accordance with Article 8 hereof or (iii) satisfaction and discharge of this
Indenture



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in accordance with Article 11 hereof, each Guarantor will be released and relieved of any
obligations under its Subsidiary Guarantee.



     Any Guarantor not released from its obligations under its Subsidiary Guarantee as provided in
this Section 10.05 will remain liable for the full amount of principal of, premium on, if any,
interest and Special Interest, if any, on, the Notes and for the other obligations of any 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 (except as to surviving rights of registration or transfer or exchange of the
Notes and as otherwise specified in this Indenture), 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 theretofore been deposited
in trust and thereafter repaid to the Company, have been delivered to the Trustee for
cancellation; or




          (b) all Notes that have not been delivered to the Trustee for cancellation have become
due and payable or will become due and payable within one year by reason of the mailing of a
notice of redemption or otherwise and the Company 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
thereof, in such 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 of, premium on, if any, interest and Special
Interest, if any, to the date of final maturity or redemption;




     (2) 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);




     (3) such deposit will not result in a breach or violation of, or constitute a default
under, any other material agreement or instrument to which the Company or any Guarantor is a
party or by which the Company or any Guarantor is bound;




     (4) the Company or any Guarantor has paid or caused to be paid all sums payable by it
under this Indenture; and




     (5) the Company has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at Stated Maturity or
the redemption date, as the case may be.


In addition, the Company must deliver to the Trustee (a) an Officers’ Certificate, stating that all
conditions precedent set forth in clauses (1) through (5) of this Section 11.01 have been
satisfied, and (b)


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an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and
qualifications), stating that all conditions precedent set forth in clauses (3) and (5) of this
Section 11.01 have been satisfied; provided that the Opinion of Counsel with respect to clause (3)
of this Section 11.01 may be to the knowledge of such counsel.




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



Section 11.02 Application of Trust Money.




     Subject to the provisions of Section 8.06 hereof, all money and proceeds of Government
Securities deposited with the Trustee pursuant to Section 11.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any,
interest and Special Interest, if any, for whose payment such money or Government Securities have
been deposited with the Trustee; but such money and Government Securities 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, the Company’s and any Guarantor’s obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.01 hereof;
provided that if the Company has made any payment of principal of, premium on, if any, interest or
Special Interest, if any, on, any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from
the money or Government Securities held by the Trustee or Paying Agent.



ARTICLE 12

MISCELLANEOUS




Section 12.01 Trust Indenture Act Controls.




     This Indenture shall incorporate and be governed by the provisions of the TIA that are
required to be part of and to govern indentures qualified under the TIA. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by TIA §318(c), the imposed duties
will control.



Section 12.02 Notices.




     Any notice or communication by the Company, any Guarantor or the Trustee to the others is duly
given if in writing in the English language and delivered in Person or by first class mail
(registered or certified, return receipt requested), electronic image scan, facsimile transmission
or overnight air courier guaranteeing next day delivery, to the others’ address:



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If to the Company and/or any Guarantor:



Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Facsimile No.: (214) 615-9374

Attention: General Counsel



With a copy to:

Vinson & Elkins L.L.P.

Trammell Crow Center

2001 Ross Avenue, Suite 2700

Dallas, Texas 75201

Facsimile No.: (214) 220-7716

Attention: Christopher R. Rowley, Esq.



If to the Trustee:

U. S. Bank Trust National Association

950 17th Street, 12th floor

Denver, Colorado 80202

Facsimile No.: (303) 585-6865

Attention: Corporate Trust Services




     The Company, 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 Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if transmitted by
electronic image scan or facsimile; and the next Business Day after timely delivery to the 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. Any notice or communication will also be
so mailed to any Person described in TIA § 313(c), to the extent required by the TIA. Failure to
mail a notice or communication to a Holder or any defect in it will not affect its sufficiency with
respect to other Holders.



     If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it.



     If the Company mails a notice or communication to Holders, it will mail a copy to the Trustee
and each Agent at the same time.



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




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



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Section 12.04 Certificate and Opinion as to Conditions Precedent.




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




     (1) an Officers’ Certificate in form and substance reasonably satisfactory to the
Trustee (which must include the statements set forth in Section 12.05 hereof) stating that,
in the opinion of the signers, all conditions precedent 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 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants have been satisfied.



Section 12.05 Statements Required in Certificate or Opinion.




     Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) must comply
with the provisions of TIA § 314(e) and must include:




     (1) a statement that the Person making such certificate or opinion has read such
covenant or condition;




     (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;




     (3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been satisfied; and




     (4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.



Section 12.06 Rules by Trustee and Agents.




     The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or Paying Agent may make reasonable rules and set reasonable requirements for its functions.



Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders.




     No director, officer, employee, incorporator or owner of any Equity Interest of the Company or
any Guarantor, as such, will have any liability for any obligations of the Company or the
Guarantors under the Notes, this Indenture, the Subsidiary Guarantees or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting
a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.



     Section 12.08 Payment Date Other Than a Business Day.



     If any payment with respect to any principal of, premium on, if any, or interest or Special
Interest, if any, on any Note (including any payment to be made on any date fixed for redemption or
purchase of any Note) is due on a day which is not a Business Day, then the payment need not be
made on such date,



87









 







but may be made on the next Business Day with the same force and effect as if made on such
date, and no interest will accrue for the intervening period.



Section 12.09 Governing Law.




     THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES
AND THE SUBSIDIARY GUARANTEES.



Section 12.10 No Adverse Interpretation of Other Agreements.




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



Section 12.11 Successors.




     All agreements of the Company in this Indenture and the Notes will bind its successors. All
agreements of the Trustee in this Indenture will bind its successors. All agreements of each
Guarantor in this Indenture will bind its successors, except as otherwise provided in Section 10.05
hereof.



Section 12.12 Severability.




     In case any provision in this Indenture or in the Notes is invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions will not in any way be
affected or impaired thereby.



Section 12.13 Counterpart Originals.




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



Section 12.14 Table of Contents, Headings, etc.




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



[Signatures on following page]




88









 








SIGNATURES




Dated as of June 10, 2009




	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 
	 	HOLLY TRUCKING, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	ROADRUNNER PIPELINE, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY REFINING & MARKETING — TULSA LLC

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 
	 	BLACK EAGLE, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY PAYROLL SERVICES, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 



[Indenture]





 









 





	 	 	 	 	 
	 	HOLLY PETROLEUM, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY REFINING & MARKETING COMPANY

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY REFINING & MARKETING COMPANY — WOODS CROSS

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY REFINING COMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY UNEV PIPELINE COMPANY

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY UTAH HOLDINGS, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	HOLLY WESTERN ASPHALT COMPANY

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 



[Indenture]












 









 








	 	 	 	 	 
	 	LEA REFINING COMPANY

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	LOREFCO, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	MONTANA REFINING COMPANY, A PARTNERSHIP

 	 
	 	By:  	Black Eagle, Inc., partner
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 	 	 
	 	By:  	                                                  Navajo Northern, Inc., partner
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	MONTANA RETAIL CORPORATION

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO CRUDE OIL PURCHASING, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 



[Indenture]





 









 





	 	 	 	 	 
	 	NAVAJO HOLDINGS, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO NORTHERN, INC.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO PIPELINE GP, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO PIPELINE LP, L.L.C.

 	 
	 	By:  	Navajo Holdings, Inc., its sole member
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO PIPELINE CO., L.P.

 	 
	 	By:  	Navajo Pipeline GP., L.L.C.
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO REFINING COMPANY, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 



[Indenture]





 









 





	 	 	 	 	 
	 	NAVAJO REFINING GP, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NAVAJO REFINING LP, L.L.C.

 	 
	 	By:  	Holly Corporation, its sole member
 	 
	 	 	 
	 	By:  	                                                /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 
	 	NAVAJO WESTERN ASPHALT COMPANY

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	NK ASPHALT PARTNERS D/B/A HOLLY ASPHALT COMPANY

 	 
	 	By:  	Navajo Western Asphalt Company, partner
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 	 	 
	 	By:  	                                                  Holly Western Asphalt Company, partner
 	 
	 	 	 
	 	By:  	                                                  /s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 
	 	WOODS CROSS REFINING COMPANY, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Vice President and Chief Financial Officer 	 
	 



[Indenture]





 









 





	 	 	 	 	 
	 	HOLLY REALTY, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 
	 	HOLLYMARKS, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 
	 	HRM REALTY, L.L.C.

 	 
	 	By:  	/s/ Bruce R. Shaw
 	 
	 	 	Bruce R. Shaw 	 
	 	 	Senior Vice President and Chief Financial
Officer 	 
	 



[Indenture]





 









 





	 	 	 	 	 
	 	U.S. BANK TRUST NATIONAL ASSOCIATION

 	 
	 	By:  	/s/ William W. MacMillan
 	 
	 	 	Name:  	William W. MacMillan 	 
	 	 	Title:  	Vice President 	 
	 



[Indenture]









 









 











EXHIBIT A




[Face of Note]



 




[Insert Original Issue Discount Legend here, if applicable.]




CUSIP/CINS                     




9.875% Senior Notes due 2017




			
	 	 	 
	No.      
	 	$                    






HOLLY CORPORATION




	 	 	 	 	 
	promises to pay to

	 	 	 	or registered assigns,
	 

	 	 	 	 





	 	 	 	 	 
	the principal sum of

	 	 	 	DOLLARS on June 15, 2017.
	 

	 	 	 	 





Interest Payment Dates: June 15 and December 15




Record Dates: June 1 and December 1




Dated: June 10, 2009




	 	 	 	 	 
	 	HOLLY CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



This is one of the Notes referred to

in the within-mentioned Indenture:




U.S. BANK TRUST NATIONAL ASSOCIATION,

   as Trustee




	 	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Authorized Signatory
	 	 






A-1









 





[Back of Note]

9.875% Senior Notes due 2017



[Insert the Global Note Legend, if applicable pursuant to the provisions of the Indenture]



[Insert the Private Placement Legend, if applicable pursuant to the provisions of the Indenture]




     Capitalized terms used herein have the meanings assigned to them in the Indenture referred to
below unless otherwise indicated.




     (1) Interest. Holly Corporation, a Delaware corporation (the “Company”),
promises to pay or cause to be paid interest on the principal amount of this Note at 9.875%
per annum from
                    , 20___ until maturity and shall pay the Special Interest, if
any, payable pursuant to Section 4 of the Registration Rights Agreement referred to below.
The Company will pay interest and Special Interest, if any, semi-annually in arrears on June
15 and December 15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided if this 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                     , 20___. The Company will pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal at a rate that is 1.00% higher than the then applicable interest rate on the Notes
to the extent lawful; it will pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and Special
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 Company will pay interest on the Notes (except
defaulted interest) and Special Interest, if any, to the Persons who are registered Holders
of Notes at the close of business on the June 1 or December 1 next preceding the Interest
Payment Date, even if such 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 Notes will be payable as to principal, premium, if any, interest
and Special Interest, if any, at the office or agency of the Paying Agent, or, at the option
of the Company, payment of interest and Special 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, interest and Special Interest, if any, on, all Global
Notes and all other Notes aggregating at least $1.0 million in principal amount the Holders
of which will have provided wire transfer instructions to the Company or the Paying Agent.
Such payment will be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.




     (3) Paying Agent and Registrar. Initially, U.S. Bank Trust National
Association, the Trustee under the Indenture, will act as Paying Agent and Registrar at its
corporate trust office in St. Paul, Minnesota, and as Paying Agent at its corporate trust
office in The City of New York, New York. The Company may change the Paying Agent or
Registrar without prior notice to the Holders of the Notes. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.



A-2









 






     (4) Indenture. The Company issued the Notes under an Indenture dated as of
June 10, 2009 (the “Indenture”) among the Company, the Guarantors and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the TIA. The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The Notes are unsecured
obligations of the Company. The Indenture does not limit the aggregate principal amount of
Notes that may be issued thereunder.




     (5) Optional Redemption.



     (a) Except as set forth in subparagraphs (b), (c) and (d) of this Paragraph 5, the Company
will not have the option to redeem the Notes prior to June 15, 2013. On or after June 15, 2013,
the Company may on one or more occasions redeem the Notes, in whole or in part, at the redemption
prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid
interest and Special Interest, if any, on the Notes redeemed to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 15 of the years indicated below, subject
to the rights of Holders on the relevant record date to receive interest on an interest payment
date that is on or prior to the redemption date:



	 	 	 	 	 
	Year	 	Percentage
	2013
	 	 	104.9375	%
	2014
	 	 	102.4688	%
	2015 and thereafter
	 	 	100.0000	%






     Unless the Company 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.



     (b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5, at any time prior
to June 15, 2012, the Company may on any one or more occasions redeem up to 35% of the aggregate
principal amount of Notes originally issued under the Indenture at a redemption price of 109.875%
of the principal amount thereof, plus accrued and unpaid interest and Special Interest, if any, to
the redemption date (subject to the rights of Holders on the relevant record date to receive
interest on an interest payment date that is on or prior to the redemption date), with the net cash
proceeds of one or more Equity Offerings; provided that (1) at least 65% in aggregate principal
amount of Notes originally issued under the Indenture remains outstanding immediately after the
occurrence of such redemption (excluding Notes held by the Company or its Affiliates) and (2) the
redemption occurs within 120 days of the date of each such Equity Offering.



     (c) The Company may redeem all (but not a portion of) the Notes when permitted by, and
pursuant to the conditions in, Section 4.15(c) of the Indenture.



     (d) At any time prior to June 15, 2013, the Company may on one or more occasions redeem the
Notes, in whole or in part, at the Make-Whole Price, plus accrued and unpaid interest and Special
Interest, if any, to the applicable date of redemption, subject to the rights of Holders on the
relevant record date to receive interest due on an interest payment date that is on or prior to the
redemption date.




     (6) Mandatory Redemption.



     The Company is not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.



A-3









 






     (7) Repurchase at the Option of Holder.




          (a) If a Change of Control occurs, each Holder will have the right to require the
Company to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of that Holder’s Notes pursuant to the offer described below (the “Change of
Control Offer”) on the terms set forth in the Indenture. Pursuant to such offer, the
Company will offer a Change of Control Payment in cash equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest (including Special
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 an interest payment date that
is on or prior to such date of repurchase (the “Change of Control Payment”). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder setting forth
the procedures governing the Change of Control Offer as required by the Indenture.




          (b) In the event that Holders of not less than 90% of the aggregate principal amount of
the outstanding Notes accept a Change of Control Offer and the Company purchases all of the
Notes held by such Holders, the Company will have the right, in accordance with Section
3.07(d) of the Indenture, upon not less than 30 nor more than 60 days’ prior notice, given
not more than 30 days following the purchase pursuant to the Change of Control Offer
described in Section 4.15 (a) of the Indenture, to redeem all of the Notes that remain
outstanding following such purchase at a redemption price equal to 101% of the aggregate
principal amount of Notes repurchased plus accrued and unpaid interest (including Special
Interest, if any) on the Notes that remain outstanding to the date of redemption, subject to
the right of the Holders on the relevant record date to receive interest due on an interest
payment date that is on or prior to the redemption date.




          (c) If the Company or a Restricted Subsidiary of the Company consummates any Asset
Sales, when the aggregate amount of Excess Proceeds exceeds $25.0 million, the Company will
be required to make an offer to all Holders of the Notes and all holders of Pari Passu
Indebtedness containing provisions similar to those set forth in the Indenture with respect
to offers to purchase or redeem with the proceeds of sales of assets (an “Asset Sale
Offer”), to purchase the maximum principal amount of Notes and such Pari Passu Indebtedness
that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of the principal amount of the Indebtedness to be purchased plus
accrued and unpaid interest and Special Interest, if any, to the date of purchase, subject
to the rights of Holders on the relevant record date to receive interest due on an interest
payment date that is on or prior to the date of purchase, and will be payable in cash, in
accordance with the procedures set forth in the Indenture, in the case of the Notes, or in
the instruments governing the terms of the Pari Passu Indebtedness, in the case of such Pari
Passu Indebtedness; provided, however, that, if the Company is required to apply such Excess
Proceeds to repurchase, or to offer to repurchase, any Pari Passu Indebtedness, the Company
shall only be required to offer to repurchase the maximum principal amount of Notes that may
be purchased out of the amount of such Excess Proceeds multiplied by a fraction, the
numerator of which is the aggregate principal amount of Notes outstanding and the
denominator of which is the aggregate principal amount of Notes outstanding plus the
aggregate principal amount of such Pari Passu Indebtedness outstanding. To the extent that
the aggregate principal amount of Notes tendered pursuant to an Asset Sale Offer is less
than the amount that the Company is required to repurchase, the Company may use the
difference between such amounts for purposes not otherwise prohibited by the Indenture. If
the aggregate principal amount of Notes surrendered by holders thereof exceeds the amount
that the Company is required by Section 4.10 of the Indenture to repurchase, the Trustee
shall select the Notes to be purchased on a pro rata basis. Upon completion of such offer
to purchase, the amount of Excess




A-4











 






Proceeds shall be reset at zero. Holders of Notes that are the subject of an offer to
purchase will receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form entitled “Option of
Holder to Elect Purchase” attached to the Notes.




     (8) Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose Notes are to
be redeemed at its registered address, except that redemption notices may be mailed more
than 60 days prior to a redemption date if the notice is issued in connection with a
defeasance of the Notes or a satisfaction or discharge of the Indenture. Notes in
denominations larger than $2,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed.




     (9) Denominations, Transfer, Exchange. The Notes are in registered form in
denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of
Notes may be registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay any transfer
tax or similar governmental charge payable in connection therewith. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for redemption,
except for the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days before a
mailing of notice of redemption or during the period between a record date and the next
succeeding Interest Payment Date.




     (10) Persons Deemed Owners. The registered Holder of a Note may be treated as
the owner of it for all purposes. Only registered Holders have rights under the Indenture.




     (11) Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture, the Notes or the Subsidiary Guarantees may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of the then
outstanding Notes including Additional Notes, if any, voting as a single class, and any
existing Default of Event or Default or compliance with any provision of the Indenture, the
Notes or the Subsidiary Guarantees may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes including Additional
Notes, if any, voting as a single class. Without the consent of any Holder of Notes, the
Indenture, the Notes or the Subsidiary Guarantees may be amended or supplemented to cure any
ambiguity, defect or inconsistency, to provide for uncertificated Notes in addition to or in
place of certificated Notes, to provide for the assumption of the Company’s or a Guarantor’s
obligations to Holders of the Notes and Subsidiary Guarantees by a successor to the Company
or such Guarantor pursuant to the Indenture, to make any change that would provide any
additional rights or benefits to the Holders of the Notes or that does not adversely affect
the legal rights under the Indenture of any Holder, to secure the Notes or the Subsidiary
Guarantees pursuant to the requirements of the Indenture, to add any Guarantor to or release
any Guarantor from its Subsidiary Guarantee (in each case as provided in the Indenture), to
conform the text of the Indenture or the Notes to any provision of the “Description of
Notes” section of the Company’s Offering Memorandum dated June 5, 2009, relating to the
initial offering of the Notes, to the extent that such provision in that “Description of
Notes” was intended to be a verbatim recitation of a provision of the Indenture, Subsidiary
Guarantees or the Notes, to provide for the issuance of Additional Notes or a successor
Trustee in respect of the Notes in accordance with the provisions of the Indenture, or to
comply with the requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA.



A-5









 






     (12) Defaults and Remedies. Events of Default include: (i) default for 30
days in the payment when due of interest and Special Interest, if any, on the Notes; (ii)
default in the payment when due of the principal of, premium on, if any, the Notes, (iii)
failure by the Company or any of its Restricted Subsidiaries to comply with the provisions
of Section 5.01 of the Indenture or to consummate the purchase of Notes when required
pursuant to Section 4.10 or 4.15 of the Indenture; (iv) failure by the Company for 90 days
after notice to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding voting as a single class to comply with the
provisions of Section 4.03 of the Indenture, (v) failure by the Company or any of its
Subsidiaries for 60 days after notice to the Company by the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding to comply with any of
the other covenants applicable to the Company or its Subsidiaries in the Indenture or the
Notes; (vi) default under certain other agreements relating to Indebtedness of the Company
which default is caused by failure to make a payment prior to the expiration of any
applicable grace period or results in the acceleration of such Indebtedness prior to its
express maturity; (vii) certain final judgments for the payment of money that remain
undischarged for a period of 60 consecutive days; (viii) certain events of bankruptcy or
insolvency with respect to the Company or any of its Restricted Subsidiaries that is a
Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would
constitute a Significant Subsidiary; and (ix) except as permitted by the Indenture, any
Subsidiary Guarantee 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 its behalf denies or disaffirms its obligations under such Guarantor’s Subsidiary
Guarantee. If any 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. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all outstanding
Notes will become due and payable immediately without further action or notice. Holders may
not enforce the Indenture or the Notes except as provided in the Indenture. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the then
outstanding Notes may direct the 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. The Trustee may withhold from Holders of the Notes notice of any continuing Default or
Event of Default (except a Default or Event of Default relating to the payment of principal,
premium, if any, interest or Special Interest, if any) if it determines that withholding
notice is in their interest. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by written notice to the Company and the Trustee may, on behalf of
the Holders of all of the Notes, rescind an acceleration or waive any continuing Default and
its consequences under the Indenture except a continuing Default in the payment of principal
of, premium on, if any, interest or Special Interest, if any, on, the Notes or in respect of
a provision of the Indenture that cannot be modified or amended without the consent of each
Holder. The Company is required to deliver to the Trustee annually a statement regarding
compliance with the Indenture, and the Company is required, upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.




     (13) Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if
it were not the Trustee.




     (14) No Recourse Against Others. No director, officer, employee, incorporator
or owner of an Equity Interest of the Company or any Guarantor, as such, will have any
liability for any obligations of the Company or the Guarantors under the Notes, the
Indenture or the



A-6









 







Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes by accepting a Note waives and releases
all such liability.




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




     (16) Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in
common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).




     (17) Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Restricted Global Notes and Restricted Definitive Notes will have all
the rights set forth in the Registration Rights Agreement dated as of June 10, 2009, among
the Company,the Guarantors and the other parties named on the signature pages thereof or, in
the case of Additional Notes, Holders of Restricted Global Notes and Restricted Definitive
Notes will have the rights set forth in one or more registration rights agreements, if any,
among the Company, the Guarantors and the other parties thereto, relating to rights given by
the Company and the Guarantors to the purchasers of any Additional Notes (collectively, the
“Registration Rights Agreement”).




     (18) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee
on Uniform Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a
convenience to Holders. No representation is made as to the accuracy of such numbers either
as printed on the Notes or as contained in any notice of redemption, and reliance may be
placed only on the other identification numbers placed thereon.




     (19) GOVERNING LAW. THE LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED
TO CONSTRUE THE INDENTURE, THIS NOTE AND THE SUBSIDIARY GUARANTEES.



     The Company will furnish to any Holder upon written request and without charge a copy of the
Indenture and/or the Registration Rights Agreement. Requests may be made to:



Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201

Attention: General Counsel




A-7









 





Assignment Form




     To assign this Note, fill in the form below:



	 	 	 
	(I) or (we) assign and transfer this Note to:
	 	 
	 

	 	 




(Insert assignee’s legal name)




 



(Insert assignee’s soc. sec. or tax I.D. no.)





 





 





 





 








(Print or type assignee’s name, address and zip code)




	 	 	 
	and irrevocably appoint
	 	 
	 

	 	 
	to transfer this Note on the books of the Company. The agent may substitute another to act for
him.






Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	          (Sign exactly as your name appears on the face of this Note)






Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-8









 










Option of Holder to Elect Purchase




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



	 	 	 
	o Section 4.10
	 	o Section 4.15






     If you want to elect to have only part of the Note purchased by the Company pursuant to
Section 4.10 or Section 4.15 of the Indenture, state the amount you elect to have purchased:



$                    




Date:                                         




	 	 	 	 	 
	 

	 	Your Signature:	 	 
	 

	 	 	 	 
	 	 	(Sign exactly as your name appears on the face of this Note)
	 
	 	 	 	 
	 

	 	Tax Identification No.:	 	 
	 

	 	 	 	 





Signature Guarantee*:                                         






 




			
	*	 	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).




A-9









 










Schedule of Exchanges of Interests in the Global Note *




     The following exchanges of a part of this Global Note for an interest in another Global Note
or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an
interest in this Global Note, have been made:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Principal Amount	 	 
	 	 	Amount of decrease	 	Amount of increase	 	of this Global Note	 	Signature of
	 	 	in Principal Amount	 	in Principal Amount	 	following such	 	authorized officer
	 	 	of	 	of	 	decrease	 	of Trustee or
	Date of Exchange	 	this Global Note	 	this Global Note	 	(or increase)	 	Custodian
	 	 	 	 	 	 	 	 	 







 




			
	*	 	This schedule should be included only if the Note is issued in global form.






A-10









 








EXHIBIT B




FORM OF CERTIFICATE OF TRANSFER




Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201




U.S. Bank Trust National Association

950 17th Street, 12th Floor

Denver, Colorado 80202

Attention: Corporate Trust Administration




     Re: 9.875% Senior Notes due 2017



     Reference is hereby made to the Indenture, dated as of June 10, 2009 (the “Indenture”), among
Holly Corporation, a Delaware corporation, as issuer (the “Company”), the Guarantors party thereto
and U.S. Bank Trust National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



                         , (the “Transferor”) owns and proposes to transfer the Note[s] or interest
in such Note[s] specified in Annex A hereto, in the principal amount of $                     in such
Note[s] or interests (the “Transfer”), to                                          (the “Transferee”), as
further specified in Annex A hereto. In connection with the Transfer, the Transferor hereby
certifies that:



[CHECK ALL THAT APPLY]




     1. o Check if Transferee will take delivery of a beneficial interest in the 144A
Global Note or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believes is purchasing the beneficial interest or Definitive Note for its own account,
or for one or more accounts with respect to which such Person exercises sole investment discretion,
and such Person and each such account is a “qualified institutional buyer” within the meaning of
Rule 144A in a transaction meeting the requirements of Rule 144A, and such Transfer is in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note and/or the Restricted
Definitive Note and in the Indenture and the Securities Act.



     2. o Check if Transferee will take delivery of a beneficial interest in the
Regulation S Global Note or a Restricted Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and, accordingly, the Transferor hereby further certifies that (i) the Transfer is
not being made to a Person in the United States and (x) at the time the buy order was originated,
the Transferee was outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United States or (y) the
transaction was executed in, on or through the facilities of a designated offshore securities
market and neither such Transferor nor any Person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States, (ii) no directed selling efforts have been made
in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration
requirements of the Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of



B-1









 







the Restricted Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on Transfer enumerated in the Private Placement
Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note and in the
Indenture and the Securities Act.



     3. o Check and complete if Transferee will take delivery of a beneficial interest
in the IAI Global Note or a Restricted Definitive Note pursuant to any provision of the Securities
Act other than Rule 144A or Regulation S. The Transfer is being effected in compliance with
the transfer restrictions applicable to beneficial interests in Restricted Global Notes and
Restricted Definitive Notes and pursuant to and in accordance with the Securities Act and any
applicable blue sky securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):




     (a) o such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;



or





     (b) o such Transfer is being effected to the Company or a subsidiary thereof;



or





     





     (c) o such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;



or





     (d) o such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the Securities Act
other than Rule 144A, Rule 144, Rule 903 or Rule 904, and the Transferor hereby further
certifies that it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with the transfer
restrictions applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of Exhibit D to the
Indenture and (2) an Opinion of Counsel provided by the Transferor or the Transferee (a
copy of which the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the proposed
transfer in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the IAI Global Note and/or the Restricted
Definitive Notes and in the Indenture and the Securities Act.



     4. o Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.




     (a) o Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected
pursuant to and in accordance with Rule 144 under the Securities Act and in compliance with the
transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of



B-2









 







the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global Notes, on Restricted
Definitive Notes and in the Indenture.




     (b) o Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being
effected pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in
compliance with the transfer restrictions contained in the Indenture and any applicable blue sky
securities laws of any state of the United States and (ii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act. Upon consummation of the proposed Transfer in accordance with the terms
of the Indenture, the transferred beneficial interest or Definitive Note will no longer be subject
to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.




     (c) o Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being
effected pursuant to and in compliance with an exemption from the registration requirements of the
Securities Act other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer
restrictions contained in the Indenture and any applicable blue sky securities laws of any State of
the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.



          This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 	 	 
	 

	 	 	 	[Insert Name of Transferor]
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






          Dated:                                         




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 Note (CUSIP                     ), or
	 
	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or





          (b) o a Restricted Definitive Note.




     2. After the Transfer the Transferee will hold:



[CHECK ONE]




          (a) o a beneficial interest in the:




          (i) o 144A Global Note (CUSIP                     ), or





	 	(ii)	 	o Regulation S Global Note (CUSIP                     ), or
	 
	 	(iii)	 	o IAI Global Note (CUSIP                     ); or
	 
	 	(iv)	 	o Unrestricted Global Note (CUSIP                     ); or





          (b) o a Restricted Definitive Note; or




          (c) o an Unrestricted Definitive Note,




          in accordance with the terms of the Indenture.





B-4









 








EXHIBIT C




FORM OF CERTIFICATE OF EXCHANGE




Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201




U.S. Bank Trust National Association

950 17th Street, 12th Floor

Denver, Colorado 80202

Attention: Corporate Trust Administration




     Re: 9.875% Senior Notes due 2017



(CUSIP                     )




     Reference is hereby made to the Indenture, dated as of June 10, 2009 (the “Indenture”), among
Holly Corporation, a Delaware corporation, as issuer (the “Company”), the Guarantors party thereto
and U.S. Bank Trust National Association, as trustee. Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.



                         , (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $                     in such Note[s]
or interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:



     1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
beneficial interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s
beneficial interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global
Note in an equal principal amount, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to the Global Notes and pursuant to and in
accordance with the Securities Act of 1933, as amended (the “Securities Act”), (iii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the beneficial interest
in an Unrestricted Global Note is being acquired in compliance with any applicable blue sky
securities laws of any state of the United States.



     (b) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest
in a Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the
Definitive Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the Restricted Global
Notes and pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.



     (c) o Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note
for a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the
beneficial interest is



C-1









 







being acquired for the Owner’s own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to maintain compliance
with the Securities Act and (iv) the beneficial interest is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     (d) o Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive
Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired
for the Owner’s own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Definitive Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.



     2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes



     (a) o Check if Exchange is from beneficial interest in a Restricted Global Note to
Restricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in
a Restricted Global Note for a Restricted Definitive Note with an equal principal amount, the Owner
hereby certifies that the Restricted Definitive Note is being acquired for the Owner’s own account
without transfer. Upon consummation of the proposed Exchange in accordance with the terms of the
Indenture, the Restricted Definitive Note issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.



     (b) o Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note
for a beneficial interest in the [CHECK ONE] o 144A Global Note, o Regulation S Global
Note, o IAI Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner’s own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities Act, and in
compliance with any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the beneficial
interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.



     This certificate and the statements contained herein are made for your benefit and the benefit
of the Company.



	 	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	[Insert Name of Transferor]
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Dated:                                         





C-2









 








EXHIBIT D




FORM OF CERTIFICATE FROM

ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR




Holly Corporation

100 Crescent Court, Suite 1600

Dallas, Texas 75201




U.S. Bank Trust National Association

950 17th Street, 12th Floor

Denver, Colorado 80202

Attention: Corporate Trust Administration




     Re: 9.875% Senior Notes due 2017



     Reference is hereby made to the Indenture, dated as of June 10, 2009 (the “Indenture”), among
Holly Corporation, a Delaware corporation, as issuer (the “Company”), the guarantors party thereto
and U.S. Bank Trust National Association, 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)  a beneficial interest in a Global Note, or



     (b) 
a Definitive Note,



     we confirm that:



     1. We understand that any subsequent transfer of the Notes or any interest therein is subject
to certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the Securities Act of 1933, as amended
(the “Securities Act”).



     2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the Notes or any interest
therein, we will do so only (A) to the Company or any subsidiary thereof, (B) in accordance with
Rule 144A under the Securities Act to a “qualified institutional buyer” (as defined therein), (C)
to an institutional “accredited investor” (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and 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(k) under the Securities Act or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree to provide to any
Person purchasing the Definitive Note or beneficial interest in a Global Note from us in a
transaction meeting the requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.



     3. We understand that, on any proposed resale of the Notes or beneficial interest therein, we
will be required to furnish to you and the Company such certifications, legal opinions and other
information as you and the Company may reasonably require to confirm that the proposed sale
complies



D-1









 







with the foregoing restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.



     4. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) and have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of our investment in the
Notes, and we and any accounts for which we are acting are each able to bear the economic risk of
our or its investment.



     5. We are acquiring the Notes or beneficial interest therein purchased by us for our own
account or for one or more accounts (each of which is an institutional “accredited investor”) as to
each of which we exercise sole investment discretion.



     You and the Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.



	 	 	 	 	 
	 

	 	 	 	 
	 

	 	        [Insert Name of Accredited Investor]
	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






Dated:                                         





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 June 10, 2009 (the
“Indenture”) among Holly Corporation, a Delaware corporation (the “Company”), the Guarantors party
thereto and U.S. Bank Trust National Association, as trustee (the “Trustee”), (a) the due and
punctual payment of the principal of, premium on, if any, interest and Special Interest, if any,
on, the Notes, whether at stated maturity, by acceleration, redemption or otherwise, the due and
punctual payment of interest on overdue principal of, premium on, if any, interest and Special
Interest, if any, on, the Notes, if any, if lawful, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in accordance with the terms of
the Indenture and (b) in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, that the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Subsidiary 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 Subsidiary
Guarantee.



     Capitalized terms used but not defined herein have the meanings given to them in the
Indenture.



	 	 	 	 	 
	 	 	[Name of Guarantor(s)]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






E-1









 






EXHIBIT F




FORM OF SUPPLEMENTAL INDENTURE

TO BE DELIVERED BY SUBSEQUENT GUARANTORS




     Supplemental Indenture (this “Supplemental Indenture”), dated as of                     ,
200___, among                      (the “Guaranteeing Subsidiary”), a subsidiary of Holly Corporation
(or its permitted successor), a Delaware corporation (the “Company”), the Company, the other
Guarantors (as defined in the Indenture referred to herein) and U.S. Bank Trust National
Association, as trustee under the Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture (the
“Indenture”), dated as of June 10, 2009 providing for the issuance of 9.875% Senior Notes due 2017
(the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary
shall execute and deliver to the Trustee a supplemental indenture pursuant to which the
Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the
Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary 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 Subsidiary
Guarantee and in the Indenture including but not limited to Article 10 thereof.



     4. No Recourse Against Others. No director, officer, employee, incorporator or owner
of an Equity Interest of the Company or any Guarantor, as such, will have any liability for any
obligations of the Company or the Guarantors under the Notes, this Indenture or the Subsidiary
Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.



     5. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUPPLEMENTAL INDENTURE.



     6. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     7. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



F-1









 





     8. 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 Company.



F-2









 





     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.



     Dated:                     , 20___



	 	 	 	 	 
	 	 	[Guaranteeing Subsidiary]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[Company]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[Existing Guarantors]
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 	 	[Trustee],
	 	 	   as Trustee
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Authorized Signatory







F-3