Common use of Section 4 Clause in Contracts

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a) of this Indenture will not prohibit the incurrence or issuance of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred securities stock (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or and/or any Subsidiary Guarantor (and the Subsidiary Guarantee thereof by the Subsidiary Guarantors) of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more the Credit Facilities, provided that, Agreement and other Debt Facilities entered into after giving effect to any such incurrence, the Issue Date in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) and then outstanding does not to exceed (except as permitted by the greater definition of “Permitted Refinancing Indebtedness”) the sum of (ai) $1.7 billion or 425.0 million and (bii) $750.0 million plus 20.0% any additional amount so long as, in the case of this subclause (ii), after giving effect thereto the Secured Net Leverage Ratio (treating all incurred Indebtedness under this clause (1) as secured by Liens on the assets of the Company’s Consolidated Net Tangible Assets as of the date of incurrence) would not exceed 3.00 to 1.00; (ii2) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue DateGuarantees; (iv4) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Indebtedness represented by (including Capital Lease Obligations), mortgage financings Disqualified Stock or purchase money obligationspreferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of construction design, construction, lease, installation or improvement of property, plant any fixed or equipment used in the business of capital assets and any Indebtedness assumed by the Company or any of its Restricted Subsidiaries in connection with the acquisition of any such Restricted Subsidiaryassets or secured by a Lien on any such assets prior to the acquisition thereof, in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 30.0 million or and (b) 2.5% of the Company’s Consolidated Net Tangible Total Assets as of the date of incurrenceand at any time outstanding; (v5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness (other than intercompany Indebtedness) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) of this Indenture or clause clauses (ii2), (iii3), (xiii4), (5), (13), (15) or (xvi18) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeCompany or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is in the obligor on such Indebtedness and neither case of the Company nor another Guarantor is or the obligeeSubsidiary Guarantee, such Indebtedness must be expressly subordinated in the case of a Subsidiary Guarantor, except to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of extent such Guarantorsubordination would violate any applicable law, rule or regulation; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company Company, will be deemed, in each case, to constitute an a new incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was which new incurrence is not permitted by this clause (vi6); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi7) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or shares of preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y):: (aA) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (bB) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either the Company or a Restricted Subsidiary of the Company shall Company, will be deemed, in each case, to constitute an a new issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was which new issuance is not permitted by this clause (xi7); (xii8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes; (9) the guarantee: (A) by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to the Notes, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed; and (B) by any Non-Guarantor Subsidiary of Indebtedness of a Non-Guarantor Subsidiary; (10) the incurrence by the Company or any of its Restricted Subsidiaries of liability Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit, performance bonds, surety bonds, appeal bonds or other similar bonds in the ordinary course of business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers’ compensation claims, or the incurrence of other Indebtedness of any Unrestricted Subsidiary of the Company with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that so long as such Indebtedness is extinguished within five Business Days of incurrenceDays; (xv12) the incurrence of Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of the Company or any Restricted Subsidiary; (13) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred securities stock by any Non-Guarantor Subsidiary in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any of the Company and the Restricted Subsidiaries Indebtedness incurred pursuant to the extent the net proceeds thereof are concurrently this clause (a) used 13), not to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Tenexceed $20.0 million at any time outstanding; (xvi14) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business; (15) Indebtedness, Disqualified Stock or preferred stock of Persons that are acquired by the Company or any Restricted Subsidiary (including by way of merger or consolidation) in accordance with the terms of this Indenture; and Indebtedness, Disqualified Stock or preferred stock of the Company or a Subsidiary Guarantor incurred in connection with, or to provide all or a portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Subsidiary or was acquired by the Company; provided that after giving effect to such acquisition, merger or consolidation, either (A) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) of this Indenture or (B) the Company’s Fixed Charge Coverage Ratio after giving pro forma effect to such acquisition, merger or consolidation would be greater than the Company’s actual Fixed Charge Coverage Ratio immediately prior to such acquisition, merger or consolidation; (16) Indebtedness of the Company or a Restricted Subsidiary in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness remains outstanding for ten Business Days or less; (17) the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction; (18) the incurrence or issuance by the Company or any of its Restricted Subsidiaries consisting of additional Indebtedness, Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness (except as permitted by the financing definition of insurance premiums in customary amounts consistent with “Permitted Refinancing Indebtedness”) and all Replacement Preferred Stock (except as permitted by the operations definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness, Disqualified Stock and business preferred stock incurred or issued pursuant to this clause (18), not to exceed the greater of the Company (A) $90.0 million and the Restricted Subsidiaries; and(B) 7.5% of Total Assets at any time outstanding; (xvii19) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or in the issuance by form of loans from a Captive Insurance Subsidiary; (20) Indebtedness representing deferred compensation to employees of the Company or any of and its Restricted Subsidiaries incurred in the ordinary course of Disqualified Stockbusiness; provided thatand (21) Indebtedness in respect of promissory notes issued to consultants, after giving effect to any such incurrence employees or issuancedirectors or former employees, the aggregate principal amount consultants or directors in connection with repurchases of all Indebtedness incurred and Disqualified Stock issued under Equity Interests permitted by Section 4.07(c)(7) of this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuanceIndenture. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (or Disqualified Stock any portion thereof) at any time, whether at the time of incurrence or preferred securities (including Acquired Debt) upon the application of all or a portion of the proceeds thereof or subsequently meets the criteria of more than one of the categories of Permitted Debt described in clauses (i1) through (xvii21) above, or is entitled to be incurred pursuant to Section 4.09(a)) of this Indenture, the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness on the date of its incurrence, or Disqualified Stock later reclassify all or preferred securities a portion of such item of Indebtedness, in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any 4.09 except that Indebtedness under the Credit Facilities Agreement outstanding on the Issue Date shall will be considered deemed to have been incurred under in reliance on the exception provided by Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to 4.09(b)(1)(i) of this paragraphIndenture. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred securities stock in the form of additional shares of the same class of Disqualified Stock or preferred securities stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities stock for purposes of this Section 4.09, provided, ; provided in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjustedother than the reclassification of preferred stock as Indebtedness due to a change in accounting principles). For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of dividendsterm debt, by or first committed, in the fraction specified case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in clause a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (4)(bincluding tender premiums) and other costs and expenses (including original issue discount) incurred in connection with such refinancing. The amount of any Indebtedness outstanding as of any date will be: (1) the accreted value of the definition Indebtedness, in the case of “Fixed Charges”). For purposes of this Section 4.09, any Indebtedness issued with original issue discount; (i2) the accrual principal amount of an obligation to pay a premium the Indebtedness, in the case of any other Indebtedness; and (3) in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with of another Person secured by a Lien on the issuance assets of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Furtherspecified Person, the accounting reclassification lesser of: (A) the Fair Market Value of any obligation or Disqualified Stock or preferred securities such assets at the date of determination; and (B) the amount of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedPerson.

Section 4. 09(a10(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (ia) the incurrence by the Company or any Guarantor of its Restricted Subsidiaries of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to Facilities in an aggregate amount at any such incurrence, the aggregate principal amount of all Indebtedness incurred time outstanding under this clause (i1) not to exceed $475.0 million, less the amount of Non-Recourse Debt outstanding under clause (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder16) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencebelow; (iib) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iiic) the incurrence by of the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date, the Note Guarantees and the Exchange Securities to be issued pursuant to the Registration Rights Agreement; (ivd) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted Subsidiary, including all Subsidiaries and Permitted Refinancing Indebtedness incurred in respect thereof, in an aggregate amount not to extend, refinance, renew, replace, defease or refund exceed at any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then time outstanding does not exceed the greater of (aA) $25.0 20.0 million or and (bB) 2.53.0% of the Company’s Consolidated Net Total Tangible Assets as of the date of incurrenceAssets; (ve) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the replacement (through construction, acquisition, lease or otherwise) of one or more Vessels and any assets that shall become Related Assets, upon a total loss, destruction, condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of such Vessel (collectively, a “Total Loss”) in an aggregate amount no greater than the ready for sea cost (as determined in good faith by the Company) for such replacement Vessel, in each case, less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) actually received by the Company or any of its Restricted Subsidiaries from any Person in connection with the Total Loss in excess of amounts actually used to repay Indebtedness secured by the Vessel subject to the Total Loss; (f) Indebtedness of the Company or any Restricted Subsidiary incurred in relation to: (i) maintenance, repairs, refurbishments and replacements required to maintain the classification of any of the Vessels owned, leased, time chartered or bareboat chartered to or by the Company or any Restricted Subsidiary; (ii) drydocking of any of the Vessels owned or leased by the Company or any Restricted Subsidiary for maintenance, repair, refurbishment or replacement purposes in the ordinary course of business; and (iii) any expenditures which will or may be reasonably expected to be recoverable from insurance on such Vessels; (g) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds respect of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock that was (other than intercompany Indebtedness) permitted by this Indenture to be incurred under Section 4.09(a4.10(a) or clause (iiSections 4.10(b)(2), (iiib)(3), (xiiib)(5), (b)(6), (b)(7) or (xvi) of this Section 4.09(b) or this clause (vb)(14); (vih) the incurrence of Indebtedness by the Company owed to a Restricted Subsidiary and Indebtedness by any Restricted Subsidiary owed to the Company or any of its other Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted SubsidiariesSubsidiary; provided, however, that: (a) if the Company is the obligor on that upon any such Indebtedness and Restricted Subsidiary ceasing to be a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, Restricted Subsidiary or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a owed to any Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemedSubsidiary, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may beapplicable, that was shall be deemed to have incurred Indebtedness not permitted by this clause (vi)8); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xii) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any shares of Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y): (a) : any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) and any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either neither the Company or nor a Restricted Subsidiary of the Company Company; shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was is not permitted by this clause (xi9); (xiij) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect Permitted Hedging Obligations; (k) the guarantee by the Company or any Guarantor of Indebtedness of the Indebtedness of any Unrestricted Company or a Restricted Subsidiary of the Company or any Joint Venture but only that was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being guaranteed is contractually subordinated to the Notes or a Guarantee, then the guarantee shall be contractually subordinated to the same extent that such liability is as the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionguaranteed; (xiiil) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt Indebtedness in connection with a merger respect of workers’ compensation claims, unemployment insurance, health, disability and other employee benefits or consolidation satisfying either one property, casualty or liability insurance, self-insurance obligations, bankers’ acceptances, or performance, completion, bid, appeal and surety bonds, in each case, in the ordinary course of the financial tests set forth in Section 5.01(a)(iv)business; (xivm) the incurrence of Indebtedness of 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 (except in the case of daylight overdrafts) drawn against insufficient funds in funds, so long as such Indebtedness is covered within five Business Days; (n) Indebtedness, Disqualified Stock or preferred stock of (x) the ordinary course of businessCompany or a Restricted Subsidiary incurred or issued to finance an acquisition or (y) a Person acquired by the Company or a Restricted Subsidiary or merged, consolidated, amalgamated or liquidated with or into a Restricted Subsidiary or the Company; provided, however, that after giving effect to such incurrence or issuance (and the related acquisition, merger, consolidation, amalgamation or liquidation), the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness incurred or the issuance of such Disqualified Stock or preferred securities of any of stock is issued, as the Company and the Restricted Subsidiaries case may be, would have been at least 1.75 to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten1.0; (xvio) the incurrence of Indebtedness of by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of the financing guarantees, earn-outs, indemnities or obligations in respect of insurance premiums purchase price adjustments in customary amounts consistent connection with the operations and business disposition or acquisition of assets, including, without limitation, shares of Capital Stock; (p) Non-Recourse Debt incurred by a Securitization Subsidiary in a Qualified Securitization Transaction; (q) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit so long each such obligation is satisfied within 30 days of the Company and the Restricted Subsidiariesincurrence thereof; and (xviir) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatIndebtedness, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (stock in an aggregate amount at any time outstanding, including Acquired Debt) meets the criteria of more than one of the categories of all Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be Refinancing Indebtedness incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii18), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedexceed $25.0 million.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i1) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 1.6 billion or and (b) the sum of $750.0 820.0 million plus 20.0and 30.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company Issuers and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue DateDate and the Exchange Notes and related guarantees to be issued in exchange for the Notes and the Subsidiary Guarantees pursuant to the Registration Rights Agreement (other than any Additional Notes); (iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv4) and then outstanding does not exceed the greater of (a) $25.0 40.0 million or and (b) 2.52.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v5) the incurrence or issuance 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 or refund refund, Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company or any Restricted Subsidiary that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii2), (iii), (xiii3) or (xvi11) of this Section 4.09(b) or this clause (v5); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii7) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) 8) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; provided that in the event such Indebtedness being guaranteed is subordinated in right of payment to the Notes or the Subsidiary Guarantees, then the guarantee shall be subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x9) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi10) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stocksecurities; provided, however, that, in the case of (x) or (y):: (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company Company, shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi10); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv12) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv13) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi14) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii15) and then outstanding does not exceed the greater of (a) $50.0 75.0 million or and (b) 5.04.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a11(a) will not prohibit of the incurrence or issuance Sellers Disclosure Letter contains a complete and accurate list, as of the date hereof, of the following Contracts (each Contract required to be set forth in Section 4.11(a) of the Sellers Disclosure Letter, a “Material Contract”) to which any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described belowPurchased Companies is a party: (i) the incurrence each License Agreement providing for guaranteed payments by the Company or licensee in excess of [**]7 in any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencecalendar years 2015 through 2017; (ii) each agent or similar agreement under which a Third Party has been granted the incurrence by right to solicit License Agreements or syndication agreements for the Company or its Restricted Subsidiaries of the Existing IndebtednessBusinesses; (iii) the incurrence by the each license agreement, including any software license agreements, under which any Purchased Company and the Guarantors is a licensee (other than “off-the-shelf” or other non-customized software or subscriptions generally commercially available for a license fee of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Dateno more than [**]8 per year); (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred Contract (other than License Agreements) providing for the purpose sale, lease or other disposition at any time after the date hereof of financing all or any part tangible assets of the purchase price or cost Businesses with a value in excess of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence[**]9; (v) each Contract relating to the incurrence or issuance Businesses that requires the expenditure of more than [**]10 by any Purchased Company in the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or aggregate after the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v)date hereof; (vi) the incurrence by the Company each written guaranty or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations other similar undertaking with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) contractual performance granted by any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Purchased Company or a Restricted Subsidiary of otherwise binding on the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi)Businesses; (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts each Contract granting a Third Party an exclusive license to rights in the ordinary course of business and not for speculative purposes;Peanuts IP Assets, other than immaterial licenses; and (viii) the guarantee by the Company each amendment, supplement or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness modification in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company foregoing. 7 [**] – Certain information on this page has been omitted and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent filed separately with the operations Securities and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuanceExchange Commission. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal Confidential treatment has been requested with respect to a non-interest bearing or other discount security, the payment of interest omitted portion. 8 [**] – Certain information on any Indebtedness in the form of additional Indebtedness this page has been omitted and filed separately with the same terms, Securities and Exchange Commission. Confidential treatment has been requested with respect to the payment of dividends omitted portion. 9 [**] – Certain information on Disqualified Stock or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection page has been omitted and filed separately with the issuance of a notice of redemption or making of a mandatory offer Securities and Exchange Commission. Confidential treatment has been requested with respect to purchase such Indebtedness or Disqualified Stock or preferred securities the omitted portion. 10 [**] – Certain information on this page has been omitted and (ii) unrealized losses or charges in filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect of Hedging Contracts (including those resulting from to the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedomitted portion.

Section 4. 09(a07(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described belowprohibit: (i1) the incurrence by payment of any dividend or the Company or consummation of any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, redemption within 60 days after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company declaration or its Restricted Subsidiaries giving of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiaryredemption notice, as the case may be, that was not permitted thereof, if at said date of declaration or notice such payment would have complied with Section 4.07(a) (and such payment shall be deemed to have been paid on the date of payment for purposes of any calculation required by this clause (viSection 4.07(a)); (vii2) the incurrence payment of any dividend or distribution by a Restricted Subsidiary to the holders of its Equity Interests on a pro rata basis; (3) any Restricted Payment made in exchange for, or out of the Net Cash Proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Capital Stock), with any such payment being deemed to be “substantially concurrent” if made within 180 days of the sale of the Equity Interests in question; 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 Section 4.07(a)(3)(B); (4) the defeasance, redemption, repurchase, retirement or other acquisition of any Subordinated Indebtedness of the Company or any Subsidiary Guarantor with the Net Cash Proceeds from an incurrence of its Restricted Subsidiaries of obligations any Permitted Refinancing Indebtedness permitted to be incurred under Hedging Contracts in the ordinary course of business and not for speculative purposesSection 4.09; (viii5) the guarantee by repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of its Restricted Subsidiaries of Indebtedness the Company held by any employees, former employees, directors or former directors of the Company or any of its Restricted Subsidiaries (or heirs, estates or other permitted transferees of such employees or directors) pursuant to any agreements (including employment agreements), management equity subscription agreements or stock option agreements or plans (or amendments thereto), approved by the Board of Directors of the Company, under which such individuals purchase or sell or are granted the right to purchase or sell shares of Capital Stock; provided that was the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests shall not exceed $10,000,000 in any calendar year, with unused amounts in any calendar year being permitted to be incurred by another provision carried over to succeeding calendar years subject to a maximum of this Section 4.09$20,000,000 in any calendar year; (ix6) the incurrence by the Company loans made to officers, directors or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising employees made in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect Subsidiary not to letters of credit supporting such obligations (in each case other than an obligation for money borrowed)exceed $5,000,000 outstanding at any one time; (xi7) the issuance repurchase of Equity Interests deemed to occur upon the exercise of stock or other equity options to the extent such Equity Interests represent a portion of the exercise price of those stock or other equity options and any repurchase or other acquisition of Equity Interests is made in lieu of or to satisfy withholding taxes in connection with any exercise or exchange of stock options, warrants, incentives or other rights to acquire Equity Interests; (8) upon the occurrence of a Change of Control or an Asset Sale and within 60 days after the completion of the offer to repurchase the Notes under Sections 4.15 or 4.10 (including the purchase of all Notes tendered and required to be purchased), any purchase, repurchase, redemption, defeasance, acquisition or other retirement for value of Subordinated Indebtedness required under the terms thereof as a result of such Change of Control or Asset Sale at a purchase or redemption price not to exceed 101% of the outstanding principal amount thereof, plus accrued and unpaid interest thereon, if any; provided that, in the notice to Holders relating to a Change of Control or Asset Sale hereunder, the Company shall describe this clause (8); (9) the purchase by the Company of fractional shares arising out of stock dividends, splits or business combinations or conversion of convertible or exchangeable securities of debt or equity issued by the Company; (10) payments to dissenting stockholders (x) any of the Company’s Restricted Subsidiaries pursuant to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities applicable law or (y) in connection with the Company settlement or any other satisfaction of its Restricted Subsidiaries of any Disqualified Stock; providedlegal claims made pursuant to or in connection with a consolidation, however, that, in the case of (x) or (y): (a) any subsequent issuance merger or transfer of Equity Interests that results assets in any such Disqualified Stock or preferred securities being held by connection with a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person transaction that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted prohibited by this clause (xi)Indenture; (xii11) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary dividends on Disqualified Capital Stock of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities stock of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof Subsidiary if such dividends are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination calculation of such Consolidated Interest Expense; or (12) other Restricted Payments in an aggregate amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedexceed $400,000,000.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred securities Preferred Stock, as applicable (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or any Notes Guarantor of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) constituting ABL Debt under one or more an ABL Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) Facility (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries the Notes Guarantors thereunder) and then outstanding does in an aggregate principal amount not exceed in excess of $500.0 million; provided the greater lenders of (a) $1.7 billion such ABL Debt or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets agent or representative acting on their behalf has entered into the ABL Intercreditor Agreement as of the date of incurrenceABL Claimholders; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing IndebtednessIndebtedness (other than Indebtedness incurred under the ABL Credit Agreement); (iii3) the incurrence by the Company and the Guarantors any Notes Guarantor of Indebtedness represented by consisting of the Initial Notes issued on the date of this Indenture and the related Subsidiary Notes Guarantees issued on and obligations of the Issue DateCompany and any Notes Guarantor under the other Note Documents; (iv4) the incurrence by the Company or any Notes Guarantor of Indebtedness consisting of Indebtedness that is either unsecured or that is Junior Lien Debt, along with all Permitted Refinancing Indebtedness in respect thereof, so long as, after giving pro forma effect to such incurrence of such Junior Lien Debt, the Consolidated Net Secured Debt Ratio is no greater than 2.00 to 1.00; provided the lenders of such Junior Lien Debt or the agent or representative acting on their behalf has entered into the Junior Lien Intercreditor Agreement as holders of the Junior Lien Obligations; (5) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Finance 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 construction design, construction, installation, development, repair, improvement or improvement replacement of property, plant or equipment used in the business of the Company or such any of its Restricted SubsidiarySubsidiaries (together with improvements, additions, accessions and contractual rights relating primarily thereto), in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund Refinance any Indebtedness (or accreted value, as applicable) incurred pursuant to this clause (iv5), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ai) $25.0 75.0 million or and (bii) 2.53.0% of the Company’s Consolidated Net Tangible Assets Assets, in each case, determined as of the date of incurrencesuch incurrence and after giving effect to the use of proceeds thereof; (v6) the incurrence or issuance 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, extendRefinance Indebtedness (or accreted value, refinanceas applicable) of the Company or any of its Restricted Subsidiaries (other than intercompany Indebtedness), renewin each case, replace, defease or refund Indebtedness or Disqualified Stock that was is permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii4.09(b)(3), (iii4), (xiii5), (6) or (xvi) of this Section 4.09(b) or this clause (v16); (vi7) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if a Notes Guarantor or the Company is the obligor on such Indebtedness and a neither the Company nor another Notes Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Notes Guarantee of such GuarantorNotes Guarantor or the Notes, as the case may be; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not the Company nor or a Restricted Subsidiary of the Company will be deemedCompany, in each case, will be deemed to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii) 8) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and with an aggregate notional amount at any time outstanding not for speculative purposesto exceed $10.0 million; (viii9) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; provided, that if the Indebtedness being guaranteed is Subordinated Debt, then such guarantee must be subordinated in right of payment to the same extent as the Indebtedness guaranteed (or, at the Company’s election, to a greater extent); (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x10) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of (a) workers’ compensation claims, health, disability or other employee benefits or property, casualty, liability or other insurance, bank guarantees, warehouse receipt or similar facilities, take-or-pay obligations in supply arrangements, self-insuranceinsurance obligations or completion, bid, performance, surety, customs, appeals and advance payment bonds, standby letters of credit or surety and similar bonds obligations issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of businessbusiness or in the ordinary course of business for a Permitted Business or in connection with the enforcement of rights or claims of the Company or any of its Restricted Subsidiaries or in connection with judgments that do not result in a Default or an Event of Default, including guarantees and or obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed), (b) cash management services, netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Company or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement and (c) Indebtedness consisting of accommodation guaranties for the benefit of trade creditors of the Company or any Restricted Subsidiary issued by the Company or such Restricted Subsidiary in the ordinary course of business; (xi11) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Preferred Stock; provided, however, that, in the case of (x) or (y):: (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Preferred Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Preferred Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemedCompany, in each case, shall be deemed to constitute an issuance issuance, sale or other transfer (as of the date of such Disqualified issuance, sale or other transfer) of such Preferred Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xiSection 4.09(b)(11); (xii12) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect (i) Indebtedness representing deferred compensation, severance and health and welfare retirement benefits to directors, officers, members of the Indebtedness of any Unrestricted Subsidiary management, employees, contract providers, independent contractors or other service providers of the Company or any Joint Venture but only of its Restricted Subsidiaries and incurred in the ordinary course of business or in the ordinary course of business for a Permitted Business or other similar arrangements incurred by such Persons in connection with acquisitions constituting Permitted Investments and (ii) Indebtedness consisting of promissory notes issued by the Company or any of its Restricted Subsidiaries to any current or former employee, director or consultant of the extent that such liability is the result Company (or any direct or indirect parent of the Company’s ) or any such of its Restricted Subsidiary’s being a general partner Subsidiaries (or permitted transferees, assigns, spouses or former spouses, estates or heirs of such Unrestricted Subsidiary employee, director or Joint Venture and not as guarantor consultant), to finance the purchase or redemption of such Indebtedness and provided that, after giving effect to Equity Interests of the Company (or any such incurrence, direct or indirect parent of the aggregate principal amount of all Indebtedness incurred under this clause (xiiCompany) and then outstanding does not exceed $25.0 millionthat is permitted by Section 4.07; (xiii13) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt Indebtedness arising in connection with a merger or consolidation satisfying either one endorsement of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds instruments for deposit in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days business or in the ordinary course of incurrencebusiness for a Permitted Business; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii14) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness any obligation, or guarantee of any obligation, to reimburse or indemnify a Person extending credit to customers of the issuance Company or any of its Restricted Subsidiaries incurred in the ordinary course of business or consistent with past practice for all or any portion of the amounts payable by such customers to the Persons extending such credit; (15) the incurrence by the Company or any of its Restricted Subsidiaries of Disqualified StockIndebtedness to a customer to finance the acquisition of any equipment necessary for the Company or such Restricted Subsidiary to perform services for such customer in the ordinary course of business or in the ordinary course of business for a Permitted Business; (16) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Acquisition Indebtedness; provided that, after giving effect to any such incurrence or issuance, that the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under by Restricted Subsidiaries that are not Notes Guarantors pursuant to this clause (xvii16) and then outstanding does clause (17) shall not exceed the greater of $100.0 million at any time outstanding; (a17) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on consisting of obligations for indemnification, adjustment of purchase price, earnouts or similar obligations, in each case, incurred or assumed in connection with any Investment or any acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the relevant exchange rates in effect at purpose of financing such acquisition; provided that the time aggregate amount of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted by Restricted Subsidiaries that are not Notes Guarantors pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b17) and clause (16) above shall not exceed $100.0 million at any time outstanding; (18) Indebtedness consisting of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual financing of an obligation to insurance premiums or (ii) take or pay a premium obligations entered into in the ordinary course of business; (19) guarantees incurred in the ordinary course of business (and not in respect of Indebtedness for borrowed money) in respect of obligations to suppliers, customers, franchisees, lessors, licensees, sublicensees or Disqualified Stock distribution partners; and (20) (i) unsecured Indebtedness in respect of obligations to pay the deferred purchase price of goods or preferred securities arising services or progress payments in connection with such goods and services; provided that such obligations are incurred in connection with open accounts extended by suppliers on customary trade terms in the ordinary course of business and not in connection with the issuance borrowing of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities money and (ii) unrealized losses or charges unsecured Indebtedness in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities intercompany obligations of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included accounts payable incurred in connection with goods sold or services rendered in the determination ordinary course of such amount shall business and not also be included and (ii) if obligations in respect connection with the borrowing of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedmoney.

Section 4. 09(a03(a) will shall not prohibit apply to the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (i) Indebtedness incurred pursuant to any Credit Facility, including the incurrence Guarantees thereof by the Guarantors, in an aggregate amount outstanding at any time not to exceed $300,000,000 (any Indebtedness incurred pursuant to the provisions set forth in this clause (i) being herein referred to as “Credit Facility Indebtedness”); (ii) Indebtedness represented by the Notes issued on the Issue Date and the related Notes Guarantees; (iii) Nonrecourse Indebtedness incurred by a Special Purpose Subsidiary under a Permitted Securitization and any Refinancing Indebtedness with respect thereto that is Nonrecourse Indebtedness; (iv) Indebtedness of the Company or any Restricted Subsidiary existing on the Issue Date (other than Indebtedness set forth in clauses (i), (ii) and (iii) of this Section 4.03(b)); (v) Refinancing Indebtedness incurred by the Company or any of its Restricted Subsidiaries of additional to Refinance any Indebtedness (including letters of credit) under one that was incurred as Ratio Indebtedness or more Credit Facilities, provided that, after giving effect as Permitted Indebtedness pursuant to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (iii), (iv), (v) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (bxiv) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencethis Section 4.03(b); (iivi) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Indebtedness owing to and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence held by the Company or any Restricted Subsidiaries; provided, however, that (A) if the Company or the Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Notes Obligations and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being owed to or held by a Person other than the Company or a Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by the provisions set forth in this clause (vi); (vii) Hedging Obligations incurred in the ordinary course of business and not for speculative purposes and, to the extent constituting Indebtedness, Banking Product Obligations; (viii) Guarantees of the Notes and Guarantees of Indebtedness that was incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to clause (v) (to the extent the Refinanced Indebtedness was so guaranteed), (vii), (ix), (x), (xi), (xiii), (xv) or (xvi) of this Section 4.03(b); provided, however, that if the Indebtedness being Guaranteed is subordinated in right of payment to the Notes or a Notes Guarantee, then such Guarantee shall be subordinated in right of payment to the Notes or such Notes Guarantee to the same extent as the Indebtedness guaranteed; (ix) Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to obligations in the nature of reimbursement obligations regarding workers’ compensation claims; (x) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred in connection with the disposition of any business, assets or a Subsidiary; (xi) obligations in respect of performance, bid, appeal, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; (xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Restricted Subsidiaries of incurrence; (xiii) Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used or useful in a Related Business (where, in the business case of a purchase, such purchase may be effected either directly or through the purchase of the Company Capital Stock of the Person owning such property, plant or such Restricted Subsidiaryequipment), including all Permitted Refinancing and any Indebtedness incurred to extendRefinance such Indebtedness, refinance, renew, replace, defease or refund in an aggregate amount at any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount time outstanding not in excess of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence15,000,000; (vxiv) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified StockAcquired Indebtedness; provided, however, that, in after giving effect to the case of merger or acquisition giving rise to the incurrence thereof, immediately after such merger or acquisition either (x) the Company would be permitted to incur at least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other the Fixed Charge Coverage Ratio would be greater than the Company Fixed Charge Coverage Ratio immediately prior to such acquisition or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrencemerger; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) promptly used to redeem all purchase Notes tendered pursuant to a Change of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture Control Offer made as described in Article Seven and Article Ten;a result of a Change of Control; and (xvi) the incurrence of additional Indebtedness of the Company or any of its Restricted Subsidiaries consisting in an aggregate amount at any time outstanding not in excess of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (ax) $50.0 million or 60,000,000 and (by) 5.02.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedTotal Assets.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or 350.0 million, (b) the maximum principal amount of Indebtedness such that, as of the date any such Indebtedness was incurred and after giving pro forma effect thereto, the Secured Leverage Ratio would not exceed 2.5 to 1.0, or, without duplication, any Permitted Refinancing Indebtedness incurred with respect to Indebtedness incurred under this clause (i)(b) and (c) the sum of $750.0 100.0 million plus 20.0and 35% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; provided, that for the purpose of determining the amount of Indebtedness that may be incurred under clause (i)(b), all Indebtedness incurred under this clause (i) shall be treated as secured Indebtedness and included in the calculation of the Secured Leverage Ratio; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Issuers and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Finance 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 construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 75.0 million or (b) 2.57.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiiixii) or (xvixvii) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any preferred securities; provided, however, that: (a) any subsequent issuance or transfer of Equity Interests that results in any such preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance (as of the date of such issuance, sale or transfer) of such preferred securities by such Restricted Subsidiary that was not permitted by this clause (vii); (viii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viiiix) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stocksecurities; provided, however, that, in the case of (x) or (y):: (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger merger, acquisition or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xivxiii) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xvxiv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvixv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; (xvi) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of Indebtedness of any Unrestricted Subsidiary or any Joint Venture but only to the extent that such liability is the result of (a) the Company’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xvi) and then outstanding does not exceed $25.0 million or (b) the pledge of (or a Guaranty limited in recourse solely to) Equity Interests in such Unrestricted Subsidiary or Joint Venture held by the Company or such Restricted Subsidiary to secure such Indebtedness and solely to the extent such Indebtedness constitutes Non-Recourse Debt; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 75.0 million or (b) 5.07.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under the Credit Facilities Agreement outstanding on the Issue Date date on which the Notes are first issued and authenticated hereunder shall be considered incurred under Section 4.09(a4.09(b)(i), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133ASC-815) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i) Indebtedness of either of the Issuers or any Guarantor under Credit Facilities (and the incurrence by the Company or any Guarantors of its Restricted Subsidiaries of additional Indebtedness (including letters of creditGuarantees thereof) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the in an aggregate principal amount of all Indebtedness incurred under at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed (as of any date of incurrence of Indebtedness pursuant to this clause (i) and then outstanding does not exceed after giving pro forma effect to such incurrence and the application of the net proceeds therefrom) the greater of (aA) $1.7 billion or 275.0 million and (bB) $750.0 million plus 20.0% the amount of the Company’s Consolidated Net Tangible Assets Borrowing Base as of the date of such incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries Priority Lien Debt of either of the Issuers or any Guarantor under letters of credit or any one or more indentures or other Credit Facilities in an aggregate principal amount at any one time outstanding pursuant to this clause (ii) not to exceed (as of any date of incurrence of Indebtedness pursuant to this clause (ii) and after giving pro forma effect to such incurrence and the application of the net proceeds therefrom) the Priority Lien Cap; (iii) Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by Indebtedness of the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect not to exceed as of any such incurrence, the principal amount date of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed incurrence the greater of (aA) $25.0 million or (b) 2.53.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceCompany and (B) $35.0 million; (v) the incurrence or issuance Permitted Refinancing Indebtedness incurred by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto refund, extend, refinance, renew, refinance or replace, defease or refund Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), clauses (iii), (xiiiiv), (v) or (xvixii) of this Section 4.09(b) or this clause (v); (vi) the incurrence intercompany Indebtedness incurred by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among and owing to and held by the Company and or any of its Restricted Subsidiaries; provided, however, that: (aA) if either of the Company Issuers or any Guarantor is the obligor on such Indebtedness and a Guarantor is not the obligeeIndebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of either of the Issuers, or if the Note Guarantee, in the case of a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (bB) (i1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company thereof and (ii2) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company will thereof, shall be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence Guarantee by either of the Company Issuers or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries Guarantors of Indebtedness of the Company or any a Restricted Subsidiary of its Restricted Subsidiaries the Company that was permitted to be incurred by another provision of this Section 4.09; (ixviii) the incurrence by Indebtedness of the Company or any Restricted Subsidiary thereof to the extent the net proceeds thereof are promptly used to purchase Notes tendered pursuant to a Change of its Restricted Subsidiaries of obligations relating Control Offer; (ix) Acquired Debt; provided that, after giving effect to net Hydrocarbon balancing positions arising the transactions that result in the ordinary course of business and consistent with past practiceincurrence or issuance thereof, the Fixed Charge Coverage Ratio for the Company’s four-quarter period immediately preceding such incurrence would not be less than immediately prior to such transactions; (x) the incurrence by the Company or any preferred stock of its a Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account Subsidiary of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries issued to the Company or to any another Restricted Subsidiary of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or the Company; provided that (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (aA) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and thereof and (bB) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either the Company or a Restricted Subsidiary of the Company shall thereof will be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, stock that was not permitted by this clause (xix); (xiixi) Indebtedness under the incurrence by the Company or any of its Restricted Subsidiaries of liability Canadian Credit Facility in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount at any one time outstanding (with letters of all Indebtedness incurred under this clause credit being deemed to have a principal amount equal to the maximum potential liability thereunder) not to exceed CAD$20.0 million; and (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of additional Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or other financial institution of a checkreplace any Indebtedness incurred pursuant to this clause (xii), draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities not to exceed as of any date of incurrence the greater of (A) 3.0% of the Consolidated Net Tangible Assets of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (aB) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance35.0 million. For purposes of determining compliance with this Section 4.09, in the event that an item of any proposed Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) stock meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xviixii) aboveof this Section 4.09(b), or is entitled to be incurred or issued pursuant to Section 4.09(a), the Company will Issuers, in their sole discretion, shall be permitted to divide and classify (at the time of its incurrence or later classify issuance, and may from time to time divide or reclassify in whole reclassify, all or in part in its sole discretion) a portion of such item of Indebtedness or Disqualified Stock or preferred securities stock in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction under the ABL Credit Facility outstanding on the incurrence date of Indebtedness this Indenture shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, have been incurred on that date in each such case, that reliance on the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, exception provided by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” this Section 4.09(b) and the letters Notes issued on the date of credit relate this Indenture (and any related Exchange Notes) will be deemed to other Indebtedness, then have been incurred in reliance on the exception provided by clause (ii) of this Section 4.09(b) (and the Initial Notes and any Exchange Notes issued in accordance with the terms of the Registration Rights Agreement may be incurred and will be deemed to be incurred in reliance on clause (ii) of this Section 4.09(b) regardless of whether such other Indebtedness shall not be includedincurrence exceeds the Priority Lien Cap).

Section 4. 09(a03(a) will shall not prohibit apply to the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (i) Indebtedness incurred pursuant to any Credit Facility, including the incurrence Guarantees thereof by the Company or any Guarantors, in an aggregate amount which, when added to all other Indebtedness incurred pursuant to this clause (i) and then outstanding, does not exceed the greater of its Restricted Subsidiaries of additional Indebtedness (including letters of creditx) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal $4,000.0 million and (y) an amount of Indebtedness that at the time of incurrence does not cause the Consolidated Senior Secured Leverage Ratio for the most recently ended four full fiscal quarters for which financial statements have been delivered to the Trustee, determined on a pro forma basis, to exceed 2.75 to 1.00; provided that for purposes of determining the amount of Indebtedness that may be incurred under this clause (i), all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability shall be treated as Consolidated Senior Secured Indebtedness for purposes of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% calculation of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceSenior Secured Leverage Ratio; (ii) the incurrence Indebtedness represented by the Company or its Restricted Subsidiaries of Notes issued on the Existing IndebtednessIssue Date and the related Notes Guarantees; (iii) the incurrence by Indebtedness of the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related or any Restricted Subsidiary Guarantees issued existing on the Issue DateDate (other than Indebtedness set forth in clauses (i) and (ii) of this Section 4.03(b)); (iv) the incurrence Refinancing Indebtedness incurred by the Company or any Restricted Subsidiaries to Refinance any Indebtedness that was incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to clause (ii), (iii), (iv) or (xiii) of this Section 4.03(b); (v) Indebtedness owing to and held by the Company or any Restricted Subsidiaries; provided, however, that (A) if the Company or the Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Notes Obligations and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being owed to or held by a Person other than the Company or a Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by the provisions set forth in this clause (vi); (vi) Hedging Obligations incurred in the ordinary course of business and not for speculative purposes and, to the extent constituting Indebtedness, Banking Product Obligations; (vii) Guarantees of the Notes and Guarantees of Indebtedness that was incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to clause (iv) (to the extent the Refinanced Indebtedness was so guaranteed), (vi), (viii), (ix), (x), (xii), (xiv), (xv) or (xvi) of this Section 4.03(b); provided, however, that if the Indebtedness being guaranteed is subordinated in right of payment to the Notes or a Notes Guarantee, then such Guarantee shall be subordinated in right of payment to the Notes or such Notes Guarantee to the same extent as the Indebtedness guaranteed; (viii) Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to obligations in the nature of reimbursement obligations regarding workers’ compensation claims; (ix) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred in connection with the disposition of any business, assets or a Subsidiary; (x) obligations in respect of performance, bid, appeal, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; (xi) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Restricted Subsidiaries of incurrence; (xii) Indebtedness represented by Capital Lease Obligations, Synthetic Leases, mortgage financings or purchase money obligations, in each case, case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used or useful in a Related Business (where, in the business case of a purchase, such purchase may be effected either directly or through the purchase of the Company Capital Stock of the Person owning such property, plant or such Restricted Subsidiaryequipment), including all Permitted Refinancing and any Indebtedness incurred to extendRefinance such Indebtedness, refinancein an aggregate amount which, renew, replace, defease or refund any when added to all other Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (ivxii) and then outstanding outstanding, does not exceed the greater of (ax) $25.0 50.0 million or and (by) 2.51.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceTotal Assets; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company Indebtedness incurred to finance a merger or any of its Restricted Subsidiaries of any Disqualified Stockan acquisition; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any the merger or acquisition giving rise to the incurrence thereof, immediately after such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause merger or acquisition either (xii) and then outstanding does not exceed $25.0 million; (xiiix) the incurrence by Company would be permitted to incur at least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (y) the Company Fixed Charge Coverage Ratio would be greater than the Fixed Charge Coverage Ratio immediately prior to such acquisition or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv)merger; (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) promptly used to redeem all purchase Notes tendered pursuant to a Change of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture Control Offer made as described in Article Seven and Article Tena result of a Change of Control; (xvixv) the incurrence of additional Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatan aggregate amount which, after giving effect when added to any such incurrence or issuance, the aggregate principal amount of all other Indebtedness incurred and Disqualified Stock issued under pursuant to the provisions described in this clause (xviixv) and then outstanding outstanding, does not exceed the greater of (ax) $50.0 100.0 million or and (by) 2.0% of Consolidated Total Assets; and (xvi) Indebtedness of any Foreign Subsidiary in an aggregate amount which, when added to all other Indebtedness incurred pursuant to the provisions described in this clause (xvi) and then outstanding, does not exceed the greater of (x) $200.0 million and (y) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedTotal Assets.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:"PERMITTED DEBT"): (i1) the incurrence by the Company or any of and its Restricted Subsidiaries of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) and then outstanding does not to exceed the greater of: (i) Cdn$175.0 million, LESS the aggregate amount of all Net Proceeds of Asset Sales that have been applied by the Company or any of its Restricted Subsidiaries since the date of this Indenture to permanently repay any term Indebtedness under a Credit Facility pursuant to Section 4.10 hereof and LESS the aggregate amount of all commitment reductions with respect to any revolving credit borrowings under a Credit Facility that have been made by the Company or any of its Restricted Subsidiaries since the date of this Indenture as a result of the application of Net Proceeds of Asset Sales pursuant to Section 4.10 hereof; and (aii) $1.7 billion or (b) $750.0 Cdn$95.0 million plus 20.015% of the Company’s Adjusted Consolidated Net Tangible Assets as of the last day of the fiscal quarter for which internal financial statements are available and immediately preceding the date of incurrenceon which such additional Indebtedness is incurred; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Note Guarantees to be issued on the Issue Datedate of this Indenture and the Exchange Notes and the related Note Guarantees to be issued pursuant to the Registration Rights Agreement; (iv4) the incurrence by the Company or any of its Restricted Subsidiaries the Guarantors of Indebtedness and Obligations represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted SubsidiaryGuarantor, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to exceed US$10.0 million at any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencetime outstanding; (v5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto refund, extend, refinance, renew, replace, defease refinance or refund replace Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii2), (iii3), (xiii4), (5) or (xvi13) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; providedPROVIDED, howeverHOWEVER, that: (ai) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a any Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligeeIndebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantorunsecured; and (bii) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company Company; will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii7) the incurrence by the Company or any of its Restricted Subsidiaries the Guarantors of obligations under Hedging Contracts Obligations, PROVIDED that such Hedging Obligations were incurred in the ordinary course of business and not for speculative purposes; (viii) 8) the guarantee by the Company or any of its Restricted Subsidiaries the Guarantors of Indebtedness of the Company or any a Restricted Subsidiary of its Restricted Subsidiaries the Company that was permitted to be incurred by another provision of this Section 4.09; (ix9) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided; PROVIDED, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued accrued; (adjusted, in 10) the case of dividends, incurrence by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect Company or any Guarantor of Indebtedness or Disqualified Stock Obligations under Oil and Gas Hedging Contracts, PROVIDED that such Contracts were entered into in the ordinary course of business and not for speculative purposes; (11) production imbalances arising in the ordinary course of business; (12) Indebtedness and Obligations in connection with one or preferred securities arising more standby letters of credit, Guarantees, performance or surety bonds or other reimbursement obligations, in each case, issued in the ordinary course of business and not in connection with the issuance borrowing of a notice money or the obtaining of redemption an advance or making credit (other than advances or credit for goods and services in the ordinary course of a mandatory offer to purchase business and on terms and conditions that are customary in the Oil and Gas Business, and other than the extension of credit represented by such Indebtedness letter of credit, Guarantee or Disqualified Stock performance or preferred securities and surety bond itself); and (ii13) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or Disqualified Stock or preferred securities will replace any Indebtedness incurred pursuant to this clause (13), not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09to exceed US$25.0 million. For purposes of determining any particular amount of Indebtedness under compliance with this Section 4.09, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i1) guarantees ofthrough (13) above, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also is entitled to be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Section 4.09(a), the Company will be permitted to classify, or later reclassify, such item of Indebtedness in whole or in part in any manner that complies with this Section 4.09, including by allocation to more than one other type of Indebtedness. Indebtedness under Credit Facility Facilities outstanding on the date on which Notes are first issued and are being treated as authenticated under this Indenture will be deemed to have been incurred pursuant to on such date in reliance on the exception provided by clause (i1) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedSection 4.09(b).

Section 4. 09(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities the issuance of any of the following items of Preferred Stock, as applicable (collectively, “"Permitted Debt”) described below:Indebtedness"): (i1) the incurrence Indebtedness represented by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the $406.0 million in aggregate principal amount of all the Notes issued on the Issue Date and the Exchange Notes issued in exchange therefor, and any Guarantees thereof; (2) Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its the Restricted Subsidiaries thereunder) and then incurred pursuant to the Credit Facility in an aggregate principal amount at any time outstanding does not to exceed the greater of (a) $1.7 billion or 825.0 million and (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceBorrowing Base; (ii3) the incurrence by the Company or its Restricted Subsidiaries other Indebtedness of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued Restricted Subsidiaries outstanding on the Issue DateDate reduced by the amount of any scheduled amortization payments or mandatory prepayments when actually paid or permanent reductions thereon; (iv4) Hedging Obligations of the incurrence Company or any Restricted Subsidiary, as the case may be, that are incurred in the ordinary course of business; provided, however, that such Hedging Obligations are entered into, in the good faith judgment of the Company, to protect the Company and the Restricted Subsidiaries from (i) fluctuations in interest rates on Indebtedness incurred in accordance with this Indenture, (ii) fluctuations in foreign currency exchange rates and (iii) commodity price risk with respect to commodities purchased by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligationsSubsidiary, in each case, incurred not for the purpose speculative purposes; (5) Indebtedness of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of a Restricted Subsidiary to the Company or another Restricted Subsidiary for so long as such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance is held by the Company or any of its a Restricted Subsidiaries of Permitted Refinancing Indebtedness Subsidiary, in exchange for, or each case subject to no Lien (other than Liens granted under the net proceeds of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(aCredit Facility) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer Subsidiary; provided that if as of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale owns or other transfer of holds any such Disqualified Stock Indebtedness or preferred securities to holds a Person that is not either Lien (other than any Lien granted under the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xiiCredit Facility) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any Indebtedness, such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by the issuer of such Indebtedness; (6) Indebtedness of the Company to a Restricted Subsidiary for so long as such Indebtedness is held by a Restricted Subsidiary, in each case subject to no Lien (other than Liens granted under the Credit Facility); provided that (A) any Indebtedness of the Company to any Restricted Subsidiary is unsecured and subordinated, pursuant to a written agreement, to the Company's obligations under this Indenture and the Notes and (B) if as of any date any Person other than a Restricted Subsidiary owns or holds any such Indebtedness or any Person holds a Lien (other than any Lien granted under the Credit Facility) in respect of its Restricted Subsidiaries such Indebtedness, such date shall be deemed the incurrence of Indebtedness not constituting Permitted Indebtedness by the Company; (7) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of after incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of 8) Indebtedness of the Company or any of its Restricted Subsidiaries consisting in respect of standby letters of credit, performance bonds, bankers' acceptances, workers' compensation claims, surety or appeal bonds, payment obligations in connection with self-insurance or similar obligations, and bank overdrafts (and letters of credit in respect thereof), in each case, in the financing ordinary course of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; andbusiness; (xvii9) the incurrence Indebtedness represented by Purchase Money Indebtedness and Capitalized Lease Obligations not to exceed $50.0 million at any one time outstanding; (10) Refinancing Indebtedness; (11) Indebtedness of the Company or any Restricted Subsidiary arising from agreements for indemnification, purchase price adjustment, earn out or other similar obligations, in each case incurred or assumed in connection with the acquisition or disposition of its any business or assets, including Capital Stock, or a Restricted Subsidiaries Subsidiary of additional Indebtedness or the issuance Company; provided that the maximum assumable liability in respect of all such obligations shall at no time exceed the gross proceeds actually received by the Company or and any Restricted Subsidiary, including the Fair Market Value of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all noncash proceeds; (12) Non-Recourse Securitization Entity Indebtedness incurred and Disqualified Stock issued under this clause by a Securitization Entity in connection with a Qualified Securitization Transaction; (xvii13) and then outstanding does not exceed the greater Indebtedness consisting of guarantees (a) $50.0 million or (b) 5.0% by the Company of Indebtedness of a Restricted Subsidiary of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled Company permitted to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes another provision of this Section 4.09, providedand (b) subject to Section 4.18, in each such case, that the amount thereof is included in Fixed Charges by Restricted Subsidiaries of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its other Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not of the Company permitted to be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes incurred by another provision of this Section 4.09. For purposes ; (14) additional Indebtedness of determining any particular the Company and Restricted Subsidiaries and Preferred Stock of Restricted Subsidiaries in an aggregate principal amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included liquidation value in the determination case of Preferred Stock) not to exceed $50.0 million at any one time outstanding; and (15) Indebtedness incurred on or prior to the Escrow Release Date for the purpose of effectuating the Reorganization Transactions; provided that no such amount Indebtedness shall not also continue to be included and (ii) if obligations in respect of letters of credit are outstanding after the Escrow Release Date unless it could have been incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (ieither Section 4.09(a) or any other clauses of this Section 4.09(b) on the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedEscrow Release Date.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below), each of which shall be given independent effect: (1) Indebtedness under the Notes issued on the Issue Date and the related Guarantees and the Notes issued in exchange for the Notes pursuant to the Registration Rights Agreement and the related Guarantees; (2) Indebtedness incurred pursuant to the Credit Agreement in an aggregate principal amount at any time outstanding not to exceed the excess of (i) the incurrence by greater of (x) $50.0 million and (y) the Company or any of its Restricted Subsidiaries of additional Indebtedness Borrowing Base; minus (including letters of creditii) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal permanent reductions to the maximum potential liability revolving commitments thereunder resulting from the receipt of Net Cash Proceeds of Asset Sales as provided in Section 4.10; (3) other Indebtedness of the Company and its Restricted Subsidiaries thereunder) and then outstanding does not exceed on the greater Issue Date reduced by the amount of (a) $1.7 billion any scheduled amortization payments or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencemandatory prepayments when actually paid or permanent reductions thereon; (ii4) the incurrence by the Company or its Restricted Subsidiaries Interest Swap Obligations of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part Subsidiary of the purchase price or cost of construction or improvement of property, plant or equipment used in the business Company covering Indebtedness of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that:that such Interest Swap Obligations are entered into to protect the Company and its Restricted Subsidiaries from fluctuations in interest rates on its outstanding Indebtedness to the extent the notional principal amount of such Interest Swap Obligation does not, at the time of the incurrence thereof, exceed the principal amount of the Indebtedness to which such Interest Swap Obligation relates; (a5) if Indebtedness under Currency Agreements; provided that in the case of Currency Agreements which relate to Indebtedness, such Currency Agreements do not increase the Indebtedness of the Company is and its Restricted Subsidiaries outstanding other than as a result of fluctuations in foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; (6) Indebtedness of a Restricted Subsidiary of the obligor on Company to the Company or to a Wholly Owned Restricted Subsidiary of the Company for so long as such Indebtedness is held by the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a Permitted Lien described in clause (1), (2), (3), (16) or (17) of the definition thereof (provided that in the case of such clauses (16) and a Guarantor is not the obligee(17), such Indebtedness must be expressly subordinated Permitted Lien secures a Swap Agreement), in each case subject to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being no Lien held by a Person other than the Company or a Wholly Owned Restricted Subsidiary of the Company and or the holder of a Permitted Lien described in clause (ii1), (2), (3), (16) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary (17) of the Company will be deemed, in each case, to constitute an incurrence definition thereof (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, provided that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of such clauses (x16) or and (y): (a) 17), such Permitted Lien secures a Swap Agreement); provided that if as of any subsequent issuance or transfer of Equity Interests that results in date any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Wholly Owned Restricted Subsidiary of the Company or the holder of a Permitted Lien described in clause (1), (2), (3), (16) or (17) of the definition thereof (provided that in the case of such clauses (16) and (17), such Permitted Lien secures a Swap Agreement) owns or holds any such Indebtedness or holds a Lien in respect of such Indebtedness, such date shall be deemed, in each case, to constitute an issuance deemed the incurrence of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was Indebtedness not permitted by constituting Permitted Indebtedness under this clause (xi)6) by the issuer of such Indebtedness in the amount of the Indebtedness no longer so held; (xii7) the incurrence by Indebtedness of the Company or any of its to a Wholly Owned Restricted Subsidiaries of liability in respect Subsidiary of the Company for so long as such Indebtedness of any Unrestricted is held by a Wholly Owned Restricted Subsidiary of the Company or the holder of a Permitted Lien described in clause (1), (2), (3), (16) or (17) of the definition thereof (provided that in the case of such clauses (16) and (17), such Permitted Lien secures a Swap Agreement), in each case subject to no Lien other than a Permitted Lien described in clause (1), (2), (3), (16) or (17) of the definition thereof (provided that in the case of such clauses (16) and (17), such Permitted Lien secures a Swap Agreement); provided that (a) any Joint Venture but only Indebtedness of the Company to any Wholly Owned Restricted Subsidiary of the extent Company that such liability is the result of not a Guarantor is unsecured and subordinated, pursuant to a written agreement, to the Company’s obligations under the Notes and (b) if as of any date any Person other than a Wholly Owned Restricted Subsidiary of the Company or the holder of a Permitted Lien described in clause (1), (2), (3), (16) or (17) of the definition thereof (provided that in the case of such clauses (16) and (17), such Permitted Lien secures a Swap Agreement) owns or holds any such Restricted Subsidiary’s being Indebtedness or holds a general partner Lien in respect of such Unrestricted Subsidiary or Joint Venture and Indebtedness, such date shall be deemed the incurrence of Indebtedness not as guarantor of such constituting Permitted Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii7) and then outstanding does not exceed $25.0 millionby the Company in the amount of the Indebtedness no longer so held; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of 8) Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days business days of incurrence; (xv9) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting (including Indebtedness in respect of standby letters of credit) in respect of bid or performance bonds, completion guarantees, performance guarantees, workers’ compensation claims, surety or appeal bonds, and payment obligations in connection with self-insurance or similar obligations, in the financing ordinary course of insurance premiums in customary amounts consistent with the operations business; (10) Indebtedness represented by Capitalized Lease Obligations and business Purchase Money Indebtedness of the Company and its Restricted Subsidiaries incurred in the ordinary course of business not to exceed $20.0 million at any one time outstanding; (11) Refinancing Indebtedness of Indebtedness incurred under clauses (1) and (3) above and this clause (11) and Section 4.09(a); (12) Indebtedness represented by guarantees by the Company or its Restricted SubsidiariesSubsidiaries of Indebtedness otherwise permitted to be incurred under this Indenture; (13) Indebtedness of the Company or any Restricted Subsidiary consisting of guarantees, indemnities or obligations in respect of purchase price adjustments in connection with the acquisition or disposition of assets; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company or such Restricted Subsidiary in connection with such disposition; and (xvii14) the incurrence by additional Indebtedness of the Company or any of and its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the in an aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xviior the accreted value, if applicable) and then outstanding does not to exceed the greater of (a) $50.0 5.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuanceat any one time outstanding. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt Indebtedness described in clauses (i1) through (xvii14) above, above or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to shall, in its sole discretion, classify (or later classify or reclassify in whole or in part in its sole discretionreclassify) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency 4.09 and incurred pursuant to any dollar-denominated restriction on the incurrence of such Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrencetreated as incurred only once. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual Accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Capital Stock or preferred securities in the form of additional shares of the same class of Disqualified Capital Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Capital Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For Indebtedness under the Credit Agreement outstanding on the Issue Date, if any, will be deemed incurred for purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to 4.09 under clause (i2) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedthis Section 4.09(b).

Section 4. 09(a3(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or any of Issuer and its Restricted Subsidiaries of additional Indebtedness under Credit Facilities (including with letters of credit) under one or more Credit Facilitiesguarantee, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with tender checks and letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company Issuer and its Restricted Subsidiaries thereunder) and then outstanding does not to exceed the sum of (i) the greater of (ax) $1.7 billion or 975.0 million and (by) the maximum amount such that after giving pro forma effect to the incurrence of such additional Indebtedness and the application of the net proceeds therefrom, the Secured Net Leverage Ratio of the Issuer would be no greater than 4.00 to 1.00 plus (ii) the greater of (x) $750.0 300.0 million plus 20.0and (y) 100% of Consolidated EBITDA for the Company’s most recently completed four fiscal quarters for which internal annual or quarterly financial statements are available calculated in a manner consistent with any pro forma adjustments to Consolidated Net Tangible Assets as EBITDA set forth in the definition of Fixed Charge Coverage Ratio, at any one time outstanding; provided that for the date purposes of incurrencedetermining the amount that can be incurred under clause (i)(y) hereof all Indebtedness incurred under clauses (i)(y) shall be deemed to be Secured Indebtedness; (ii2) Indebtedness incurred under Credit Facilities or otherwise in connection with one or more standby letters of credit, bankers’ acceptances, completion guarantees, performance bonds, bid bonds, appeal bonds or surety bonds or other similar reimbursement obligations, in each case, issued in the ordinary course of business (including for the purpose of providing security for environmental reclamation obligations to government agencies, workers’ compensation claims, payment obligations in connection with self insurance or similar statutory and other requirements) and not in connection with the borrowing of money or the obtaining of an advance or credit; (3) the incurrence by the Company or its Restricted Subsidiaries Issuer of Indebtedness represented by the Notes issued on the Issue Date and the incurrence by the Guarantors of the Existing IndebtednessNote Guarantees; (iii4) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness or Attributable Debt (including obligations represented by Capital Lease Obligations or Purchase Money 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 construction design, construction, installation, development or improvement of property, plant or equipment or other assets used in the business of the Company Issuer or such any of its Restricted SubsidiarySubsidiaries, in an aggregate outstanding principal amount, including all outstanding Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ai) $25.0 145.0 million or and (bii) 2.55.0% of the Company’s Consolidated Net Tangible Total Assets as of the any date of incurrenceincurrence (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom); (v5) the incurrence or issuance by the Company Issuer or any of its Restricted Subsidiaries of the Existing Indebtedness; (6) the incurrence by the Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness (other than intercompany Indebtedness between or Disqualified Stock among the Issuer and any of its Restricted Subsidiaries) that was permitted by this Indenture to be incurred under in reliance on Section 4.09(a4.3(a) or clause (iiSections 4.3(b)(3), (iii4), (xiii5), (6) or (xvi) of this Section 4.09(b) or this clause (v12); (vi7) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company Issuer and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Issuer or a Restricted Subsidiary of the Company and Issuer; and (iiB) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor Issuer or a Restricted Subsidiary of the Company Issuer will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi7); (vii8) the issuance of preferred stock by any Restricted Subsidiary of the Issuer to the Issuer or to any other Restricted Subsidiary of the Issuer; provided, however, that (A) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Issuer or a Restricted Subsidiary of the Issuer; and (B) any sale or other transfer of any such preferred stock to a Person that is not either the Issuer or a Restricted Subsidiary of the Issuer will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (8); (9) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of obligations under Hedging Contracts Obligations in the ordinary course of business and not for speculative purposes; (viii10) the guarantee by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness of the Company Issuer or any of its a Restricted Subsidiaries Subsidiary that was permitted to be incurred by another provision of this Section 4.094.3 (including, for greater certainty, Note Guarantees in respect of Additional Notes so permitted to be incurred); provided that if the Indebtedness being guaranteed is subordinated in right of payment to or pari passu in right of payment with the Notes or any of the Note Guarantees, then the guarantee must be subordinated in right of payment or pari passu in right of payment to the same extent as the Indebtedness guaranteed; (ix11) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company Issuer or any of its Restricted Subsidiaries arising (i) from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business or (ii) in connection with endorsement of instruments for deposit in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv12) the incurrence of Indebtedness or by the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company Issuer or any of its Restricted Subsidiaries consisting of Cash Management Obligations in the ordinary course of business; (13) the incurrence of (1) Indebtedness or Disqualified Stock (i) of the financing Issuer or any of insurance premiums its Restricted Subsidiaries incurred or assumed in customary amounts consistent connection with an acquisition of any assets (including Capital Stock), business or Person and (ii) of any Person that is acquired by the Issuer or any of its Restricted Subsidiaries or merged into or consolidated or amalgamated with the operations and business Issuer or a Restricted Subsidiary in accordance with the terms of the Company Indenture and (2) Indebtedness incurred or Disqualified Stock issued or, in each case, assumed in anticipation of, or in connection with, an acquisition of any assets, business or Person; provided, that after giving effect to such acquisition, merger, consolidation or amalgamation and the Restricted Subsidiaries; andincurrence of such Indebtedness or Disqualified Stock, either (xviiA) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.3(a); or (B) the Fixed Charge Coverage Ratio is equal to or greater than immediately prior to such Person becoming a Restricted Subsidiary or to such merger, amalgamation, consolidation or acquisition; (14) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate outstanding principal amount (or accreted value, as applicable), including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (14), not to exceed the issuance by greater of (i) $225.0 million and (ii) 60.0% of Consolidated EBITDA for the Company most recently completed four fiscal quarters for which internal annual or quarterly financial statements are available calculated in a manner consistent with any pro forma adjustments to Consolidated EBITDA set forth in the definition of its Restricted Subsidiaries Fixed Charge Coverage Ratio; (15) Indebtedness consisting of Disqualified Stock; provided that(i) the financing of insurance premiums in an amount not to exceed, at any time outstanding, the greater of (a) $30.0 million and (b) 1.0% of Total Assets determined at the time of incurrence of such Indebtedness (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom) or (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business; (16) additional Indebtedness of the Issuer and its Restricted Subsidiaries to fund an acquisition or Investment in an aggregate principal amount not to exceed at any time outstanding the greater of (a) $115.0 million and (b) 4.0% of Total Assets determined at the time of incurrence of such Indebtedness (after giving effect to the incurrence of such Indebtedness and the application of the proceeds therefrom); provided that no Event of Default shall be continuing at the time the relevant agreement with respect to such acquisition or issuanceInvestment is entered into; (17) Indebtedness incurred by a Restricted Subsidiary that is not a Guarantor which, when aggregated with the aggregate principal amount of all other Indebtedness incurred and Disqualified Stock issued under pursuant to this clause (xvii17) and then outstanding outstanding, does not exceed the greater of (ai) $50.0 45 million or and (bii) 5.01.5% of the Company’s Consolidated Net Tangible Total Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect determined at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities (after giving effect to the incurrence of such Indebtedness and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (iithe proceeds therefrom), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.; and

Section 4. 09(a03(a) will shall not prohibit apply to the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (i) Indebtedness incurred pursuant to any Credit Facility, including the incurrence Guarantees thereof by the Guarantors, in an aggregate amount outstanding at any time not to exceed $25,000,000 (any Indebtedness incurred pursuant to the provisions set forth in this clause (i) being herein referred to as “Credit Facility Indebtedness”); (ii) Indebtedness represented by the Notes issued on the Issue Date and the related Notes Guarantees; (iii) Nonrecourse Indebtedness incurred by a Special Purpose Subsidiary under a Permitted Securitization and any Refinancing Indebtedness of such Special Purpose Subsidiary with respect thereto that is Nonrecourse Indebtedness; (iv) Indebtedness of the Company or any Restricted Subsidiary existing on the Issue Date (other than Indebtedness set forth in clauses (i), (ii) and (iii) of this Section 4.03(b)); (v) Refinancing Indebtedness incurred by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund Refinance any Indebtedness that was incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiiiiv) or (xviv) of this Section 4.09(b) or this clause (v4.03(b); (vi) the incurrence Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: that (aA) if the Company or the Guarantor is the obligor on such Indebtedness and a Guarantor is not the obligeeIndebtedness, such Indebtedness must be is expressly subordinated to the prior payment in full in cash of all Notes Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (iB)(l) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being owed to or held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii2) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will shall be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts Obligations incurred in the ordinary course of business and not for speculative purposes; (viii) Guarantees of the guarantee by the Company or any of its Restricted Subsidiaries Notes and Guarantees of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to be incurred by another provision clause (v) (to the extent the Refinanced Indebtedness was so guaranteed), (vii), (ix), (x), (xi), (xiii) or (xv) of this Section 4.094.03(b); provided, however, that if the Indebtedness being Guaranteed is subordinated in right of payment to the Notes or a Notes Guarantee, then such Guarantee shall be subordinated in right of payment to the Notes or such Notes Guarantee to the same extent as the Indebtedness guaranteed; (ix) the incurrence by the Company or any Indebtedness constituting reimbursement obligations with respect to letters of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds credit issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to obligations in the nature of reimbursement obligations regarding workers’ compensation claims; (x) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (purchase price or similar obligations, in each case other than an obligation for money borrowed)incurred in connection with the disposition of any business, assets or a Subsidiary; (xi) the issuance obligations in respect of performance, bid, appeal, surety and similar bonds and completion guarantees provided by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, Subsidiary in the case ordinary course of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi)business; (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrenceits Incurrence; (xvxiii) Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case incurred for the incurrence purpose of Indebtedness financing all or the issuance of Disqualified Stock or preferred securities of any part of the Company and purchase price or cost of construction or improvement of property, plant or equipment used or useful in a Related Business (where, in the Restricted Subsidiaries to case of a purchase, such purchase may be effected either directly or through the extent the net proceeds thereof are concurrently (a) used to redeem all purchase of the Capital Stock of the Person owning such property, plant or equipment), and any Indebtedness incurred to Refinance such Indebtedness, in an aggregate amount at any time outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described not in Article Seven and Article Tenexcess of $10,000,000; (xvixiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted SubsidiariesAcquired Indebtedness; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided provided, however, that, after giving effect to any the merger or acquisition giving rise to the incurrence thereof, immediately after such incurrence merger or issuance, acquisition the aggregate principal amount Company would be permitted to incur at least $1.00 of all additional Ratio Indebtedness incurred and Disqualified Stock issued under this clause pursuant to Section 4.03(a); and (xviixv) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% additional Indebtedness of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company Issuer or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will Subsidiary Guarantor in an aggregate amount at any time outstanding not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedexcess $10,000,000.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred securities Preferred Stock, as applicable (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or and any of its Restricted Subsidiaries Subsidiary of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (iSection 4.09(b)(1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries the Subsidiary Guarantors thereunder) and then outstanding does not to exceed the greater greatest of (ai) $1.7 billion or 2,500.0 million, (bii) $750.0 million plus 20.0the Borrowing Base in effect under the Credit Agreement at the time of incurrence, and (iii) 35% of the Company’s Adjusted Consolidated Net Tangible Assets determined as of the date of such incurrence; (ii2) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Note Guarantees to be issued on the Issue Date; (iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Finance 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 construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount outstanding, including all Permitted Refinancing Indebtedness incurred to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (ivSection 4.09(b)(4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ai) $25.0 150.0 million or and (bii) 2.51.5% of the Company’s Adjusted Consolidated Net Tangible Assets determined as of the date of such incurrence; (v5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness (other than intercompany Indebtedness) of the Company or any of its Restricted Subsidiaries or any Disqualified Stock of the Company, in each case that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (iiSection 4.09(b)(2), (iii3), (xiii4), (5), (14) or (xvi) of this Section 4.09(b) or this clause (v15); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeCompany or a Subsidiary 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 if the Note Guarantee, in the case of a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company Company; and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance incurrence of such Disqualified Stock Indebtedness by the Company or preferred securities by such Restricted Subsidiary or the CompanySubsidiary, as applicablethe case may be, that was not permitted by this clause (xiSection 4.09(b)(6); (xii7) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Preferred Stock; provided, however, that: (i) any subsequent issuance or transfer of Equity Interests that results in any such Preferred Stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (ii) any sale or other transfer of any such Preferred Stock to a Person that is not either the Company or a Restricted Subsidiary of the Company, shall be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this Section 4.09(b)(7); (8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes; (9) the Guarantee by the Company or any Restricted Subsidiary of Indebtedness of the Company or a Restricted Subsidiary of the Company to the extent that the Guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being Guaranteed is subordinated in right of payment to or pari passu with the Notes, then the Guarantee must be subordinated in right of payment or pari passu, as applicable, to the same extent as the Indebtedness Guaranteed; (10) the incurrence by the Company or any of its Restricted Subsidiaries of liability Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance, bid, plugging and abandonment, appeal, reimbursement, performance, surety and similar bonds, and completion guarantees provided by the Indebtedness of any Unrestricted Company or a Restricted Subsidiary of the Company in the ordinary course of business and any Guarantees or letters of credit functioning as or supporting any Joint Venture but only to the extent that such liability is the result of the Company’s foregoing bonds, obligations or any such Restricted Subsidiary’s being a general partner workers’ compensation claims in the ordinary course of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionbusiness; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; providedfunds, however, that so long as such Indebtedness is extinguished covered within five Business Days of incurrenceDays; (xv12) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of by the Company or any of its Restricted Subsidiaries consisting of in-kind obligations relating to net oil, natural gas liquids or natural gas balancing positions arising in the financing ordinary course of insurance premiums in customary amounts consistent with the operations and business business; (13) any obligation arising from agreements of the Company and or any Restricted Subsidiary of the Company providing for indemnification, adjustment of purchase price, earn outs or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted SubsidiariesSubsidiary in a transaction permitted by this Indenture; (14) any Permitted Acquisition Indebtedness; and (xvii15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or of any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the Stock in an aggregate principal amount of (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred and to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock issued under pursuant to this clause (xvii) and then outstanding does Section 4.09(b)(15), not exceed to exceed, at any one time outstanding, the greater of (ai) $50.0 300.0 million or and (bii) 5.03.0% of the Company’s Adjusted Consolidated Net Tangible Assets determined as of the date of such incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a9(a) will not prohibit of the incurrence Company Disclosure Letter contains an accurate and complete list, as of the date of this Agreement, of all Contracts (other than any Company Benefit Plan) in effect as of the date hereof, of the following types to which the Company or issuance any of its Subsidiaries is a party or bound or to which any of the following items of Indebtedness or Disqualified Stock or preferred securities Assets is subject (collectively, the “Permitted DebtCompany Material Contracts”) described below:): (i) any Contract that is filed by the incurrence Company as a material Contract pursuant to Item 601(b)(10) of Regulation S-K of the SEC; (ii) any Contract that expressly imposes any material restriction on the right or ability of the Company and its Subsidiaries, collectively, to compete with any other Person (or in any line of business, market or geographical area); (iii) any Contract with a material customer that expressly obligates the Company and its Subsidiaries (or following the Closing, Parent and its Subsidiaries), in each case, taken as a whole, to conduct business with any third party on an exclusive basis; (iv) any Contract relating to indebtedness for borrowed money of (or guarantees thereof by) the Company or any of its Subsidiaries having an outstanding or committed principal amount (or a guarantee thereof) in excess of $2,000,000 (other than any such indebtedness owed by the Company or any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company, and guarantees thereof); (v) any Contract (A) granting to Company or any of its Subsidiaries rights to any Intellectual Property owned by a third party that are material to the Company and the Company Subsidiaries taken as a whole, excluding (x) Contracts for commercially available Software and (y) “shrink wrap,” “click through” or other standard term licenses to commercially available Software; (B) granting to a third party rights to any Intellectual Property owned by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect that are material to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed taken as a whole, excluding any non-exclusive licenses entered into in the greater ordinary course of (a) $1.7 billion business; or (bC) $750.0 million plus 20.0% of restricting the Company’s Consolidated Net Tangible Assets or any of its Subsidiaries’ rights to use, practice, or enforce any Company Intellectual Property that is material to the Company and its Subsidiaries taken as a whole; (vi) any Contract entered into on or after June 30, 2017 that provides for the acquisition or disposition of any assets (other than acquisitions or dispositions of inventory or other assets held for sale in the ordinary course of business) or business (whether by merger, sale of stock, sale of assets or otherwise) or capital stock or other equity interests of any Person or any Contract relating to the acquisition or disposition of assets or businesses with any outstanding obligations as of the date of incurrencethis Agreement, in each case with a value in excess of $2,000,000; (iivii) any material joint venture, partnership or limited liability company agreement or other similar Contract relating to the incurrence by formation, creation, operation, management or Control of any joint venture, partnership or limited liability company, other than any such Contract solely between the Company and its wholly owned Subsidiaries or its Restricted Subsidiaries of among the Existing IndebtednessCompany’s wholly owned Subsidiaries; (iiiviii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Dateany Contract with a Material Customer or a Material Supplier; (ivix) the incurrence by any Contract pursuant to which the Company or any of its Restricted Subsidiaries has an obligation to make an investment in or loan to any other Person (other than in or to any wholly owned Subsidiary of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligationsthe Company), in each case, incurred for the purpose case with an aggregate value in excess of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence1,000,000; (vx) the incurrence any Government Contract with a value in excess of $10,000,000; (xi) any collective bargaining agreement or issuance by other Contract with any labor union, labor organization, works council or group of employees (each, a “CBA”); (xii) any Contract that is a material settlement, conciliation or similar agreement with any Governmental Authority or pursuant to which 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or will have any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of material outstanding obligation after the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiarythis Agreement, other than with a Governmental Authority in its capacity as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness a customer of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09Subsidiaries; (ixxiii) the incurrence by the Company any Contract for employment or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent engagement with past practice;a Designated Employee; and (xxiv) any Contract that is a material settlement that restricts in any material respect the incurrence by the Company operations or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations conduct of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “"Permitted Debt”) described below:"): (i1) the incurrence by the Company or any of its Restricted Subsidiaries and the Guarantee by the Canadian Guarantors of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not to exceed on any date of incurrence the greater of (aA) $1.7 billion 500.0 million or (bB) $750.0 million plus 20.0the dollar amount that is equal to 50% of the Company’s 's Consolidated Net Tangible Assets as of Cash Flow for the date of incurrencethen most recent four-quarter period for which financial information is available; (ii2) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company and the Canadian Guarantors of Indebtedness represented by the Initial Notes, the 2010 Notes, the 2013 Notes and the related Subsidiary Guarantees Term Loans to be issued on the Issue Datedate of this Indenture, and in each case the related Guarantees; (iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount (or accreted value, as applicable), including all Permitted Refinancing Indebtedness incurred to extend, refund, refinance, renew, replace, replace or defease or refund any Indebtedness incurred pursuant to this clause (iv4), not to exceed $100.0 million at any one time outstanding; (5) Indebtedness of the Company which is owed to and owned by a Restricted Subsidiary and Indebtedness of a Restricted Subsidiary that is owed to and owned by the Company or a Restricted Subsidiary; provided that after giving effect to any subsequent issuance or transfer of any Capital Stock that results in any such incurrenceRestricted Subsidiary ceasing to be a Restricted Subsidiary or any transfer of such Indebtedness (other than to the Company or a Restricted Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the Company or by a Restricted Subsidiary, as the case may be; (6) the incurrence of Non-Recourse Debt by any Restricted Subsidiary of the Company (other than a Restricted Subsidiary that owns, directly or indirectly, any Material Designated Assets); (7) the issuance of preferred stock by a Restricted Subsidiary of the Company (other than a Restricted Subsidiary that owns, directly or indirectly, any Material Designated Assets), the net proceeds of which are applied to finance the exploration, drilling, development, construction or purchase of or by, or repairs or improvements or additions to, property or assets of the Company or any Restricted Subsidiary; (8) the incurrence by the Company of Guarantees of Indebtedness of Restricted Subsidiaries which, but for such Guarantees, would be permitted to be incurred pursuant to clause (6) of Section 4.09 (b); provided that the aggregate principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding 8) does not exceed the greater of (a) $25.0 100.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceat any one time outstanding; (v9) the incurrence or issuance 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, extendto refund, refinance, renew, replace, defease or refund discharge Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii2), (iii3), (xiii) 4), (5), (6), (8) or (xvi10) of this Section 4.09(b) or this clause (v9); (vi10) the incurrence of Acquired Debt by any Restricted Subsidiary of the Company or any of its at the time such Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or becomes a Restricted Subsidiary of the Company and (ii) any sale so long as such Acquired Debt was not incurred in connection with or other transfer in contemplation of any such Indebtedness to a Person that is neither the Company nor becoming a Restricted Subsidiary of the Company; provided that the Company will be deemed, in each case, would have been able to constitute an incurrence (as of the date of such issuance or transfer) of incur such Indebtedness at the time of incurrence thereof by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause Subsidiary pursuant to Section 4.09 (via); (vii11) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Indebtedness pursuant to Hedging Contracts Obligations incurred in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x12) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of workers' compensation claims, self-insuranceinsurance obligations, bid, performance, bankers' acceptances and performance and surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a10(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company Holdings or any Restricted Subsidiary of its Indebtedness under the Credit Agreement together with the incurrence by Holdings or any Restricted Subsidiaries Subsidiary of additional Indebtedness (including the guarantees thereunder and the issuance and creation of letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability face amount thereof), up to an aggregate principal amount of $4,250.0 million outstanding at any one time, less the Company amount of all principal payments (with respect to revolving borrowings and its Subsidiaries thereunderletters of credit, only to the extent revolving commitments are correspondingly reduced) and then outstanding does not exceed actually made by the greater borrower thereunder in respect of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Indebtedness thereunder with Net Tangible Assets as of the date of incurrenceProceeds from Asset Sales pursuant to Section 4.13 hereof; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Issuers and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; Date (ivincluding any Guarantee thereof) and the incurrence by the Company or any of its Restricted Subsidiaries Issuers and the Guarantors of Indebtedness represented by Capital the Exchange Notes (including any Guarantee thereof); (3) Existing Indebtedness (other than Indebtedness described in clauses (1) or (2)); (4) Indebtedness (including Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each case, ) incurred for the purpose of financing all by Holdings or any part of Restricted Subsidiary to finance the purchase price or cost of construction purchase, lease or improvement of property, plant property (real or personal) or equipment that is used or useful in a Permitted Business (whether through the business direct purchase of assets or the Company or Capital Stock of any Person owning such Restricted Subsidiaryassets) in an aggregate principal amount that, including when aggregated with the principal amount of all Permitted Refinancing other Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness then outstanding and incurred pursuant to this clause (iv4), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ax) $25.0 100.0 million or and (by) 2.52.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceTotal Assets; (v5) the incurrence or issuance Indebtedness incurred by the Company Holdings 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations Subsidiary constituting reimbursement obligations with respect to the Notesany letters of credit, bankers’ acceptance warehouse receipt or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds facility issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations without limitation letters of the Company credit in respect of workers’ compensation claims, health, disability or any of its Restricted Subsidiaries other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to letters of credit supporting such reimbursement-type obligations (in each case other than an obligation for money borrowed)regarding workers’ compensation claims; (xi6) Indebtedness arising from agreements of Holdings or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries disposition of any Disqualified Stock business, assets or preferred securities or (y) the Company a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of its Restricted Subsidiaries such business, assets or a Subsidiary for the purpose of any Disqualified Stockfinancing such acquisition; provided, however, that, that (A) such Indebtedness is not reflected on the balance sheet of Holdings or any Restricted Subsidiary pursuant to GAAP (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the case balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (xA)) or and (y):B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of such noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Holdings and any Restricted Subsidiaries in connection with such disposition; (a7) Indebtedness of Holdings owed to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by Holdings or any other Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Equity Interests any Capital Stock or any other event that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Company; and (b) or any sale or other subsequent transfer of any such Disqualified Stock or preferred securities Indebtedness (except to a Person that is not either the Company Holdings or a Restricted Subsidiary of the Company Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof and (B) if the Company, the Co-issuer or a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated in right of payment to all obligations of the Company, the Co-issuer or such Guarantor with respect to the Notes; (8) shares of Preferred Stock of a Restricted Subsidiary issued to Holdings or a Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to Holdings or a Restricted Subsidiary) shall be deemed in each case to be an issuance of such Disqualified shares of Preferred Stock; (9) Hedging Obligations of Holdings or any Restricted Subsidiary (excluding Hedging Obligations entered into for speculative purposes) for the purpose of limiting (A) interest rate risk with respect to any Indebtedness that is permitted by the terms of this Indenture to be outstanding or (B) exchange rate risk with respect to any currency exchange; (10) obligations in respect of performance and surety bonds and performance and completion guarantees provided by Holdings or any Restricted Subsidiary or obligations in respect of letters of credit related thereto, in each case in the ordinary course of business or consistent with past practice; (11) Indebtedness of the Company, the Co-issuer or any Guarantor or Preferred Stock of any Restricted Subsidiary that is a Guarantor not otherwise permitted hereunder in an aggregate principal amount or preferred securities liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness and Preferred Stock then outstanding and incurred pursuant to this clause (11), does not at any one time outstanding exceed $500.0 million; (12) (x) any guarantee by Holdings, the Company, the Co-issuer or a Guarantor of Indebtedness or other obligations of any Restricted Subsidiary (other than the Company) so long as the incurrence of such Indebtedness by such Restricted Subsidiary is permitted under the terms of this Indenture; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes or the CompanyGuarantee of such Restricted Subsidiary or Holdings, as applicable, any such guarantee of such Guarantor with respect to such Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or the Guarantee of such Restricted Subsidiary or Holdings, as applicable, (y) any guarantee by a Restricted Subsidiary that was is not permitted by this clause (xi); (xii) the incurrence by the Company Co-issuer or any a Guarantor of its Restricted Subsidiaries of liability in respect of the Indebtedness of another Restricted Subsidiary that is not the Co-issuer or a Guarantor incurred in accordance with the terms of this Indenture, and (z) any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrenceguarantee by Holdings, the aggregate principal amount Co-issuer (including by way of all Indebtedness incurred under this clause (xiico-issuance) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence Guarantor of Indebtedness of the Company incurred in accordance with the terms of this Indenture; (13) the incurrence by Holdings or any Restricted Subsidiary of Indebtedness or Preferred Stock that serves to refund or refinance any Indebtedness incurred as permitted under Section 4.10(a) or clauses (2), (3) and (4) above, this clause (13) and clauses (14), (20) and (21) below or any Indebtedness issued to so refund or refinance such Indebtedness including additional Indebtedness incurred to pay premiums and fees in connection therewith (the “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being refunded or refinanced, (B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Notes or the Guarantees, such Refinancing Indebtedness is subordinated or pari passu to the Notes or the Guarantees at least to the same extent as the Indebtedness being refinanced or refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a Subsidiary that is not the Company, the Co-issuer or a Guarantor that refinances Indebtedness or Preferred Stock of the Company, the Co-issuer or a Guarantor or (y) Indebtedness or Preferred Stock of Holdings or a Restricted Subsidiaries Subsidiary that refinances Indebtedness or Preferred Stock of an Unrestricted Subsidiary, (D) shall not be in a principal amount in excess of the principal amount of, premium, if any, accrued interest on, and related fees and expenses of, the Indebtedness being refunded or refinanced and (E) shall not have a stated maturity date prior to the Stated Maturity of the Indebtedness being refunded or refinanced; (14) Indebtedness or Preferred Stock of a Person incurred and outstanding on or prior to the date on which such Person was acquired by Holdings or any Restricted Subsidiary or merged into Holdings or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness or Preferred Stock is not incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, such acquisition or merger; and provided, further, that after giving effect to such incurrence of Indebtedness either (A) Holdings would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.10(a) or (B) such Fixed Charge Coverage Ratio would be greater than immediately prior to such acquisition; (15) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, provided that such Indebtedness is extinguished within five Business Days of its incurrence; (xv16) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company Holdings or any of its Restricted Subsidiaries consisting supported by a letter of credit issued pursuant to the Credit Agreement in a principal amount not in excess of the financing stated amount of insurance premiums in customary amounts consistent with the operations and business such letter of the Company and the Restricted Subsidiaries; andcredit; (xvii17) the incurrence Indebtedness incurred by the Company a Securitization Subsidiary in a Qualified Securitization Financing that is not recourse to Holdings or any of its Restricted Subsidiaries of additional Subsidiaries, other than a Securitization Subsidiary (except for Standard Securitization Undertakings); (18) Indebtedness or the issuance incurred by the Company or any of its a Non-Guarantor Restricted Subsidiaries of Disqualified StockSubsidiary; provided thatprovided, after giving effect to any such incurrence or issuancehowever, that the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii18) and when aggregated with the principal amount of all other Indebtedness then outstanding and incurred pursuant to this clause (18), does not exceed the greater of (ax) $50.0 150.0 million and (y) 3.0% of Total Assets; (19) Indebtedness consisting of promissory notes issued by the Company or any Guarantor to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of Holdings or any of its direct or indirect parent corporations permitted by Section 4.11; (20) Contribution Indebtedness; (21) Indebtedness of Holdings or any Restricted Subsidiary incurred in connection with or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the acquisition by Holdings or any Restricted Subsidiary of property used or useful in a Permitted Business (including a Product) (whether through the direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation with, any Person owning such assets); provided that the Fixed Charge Coverage Ratio of Holdings for its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such Indebtedness is incurred, determined on a pro forma basis as if such Indebtedness had been incurred and the application of proceeds therefrom had occurred at the beginning of such four-quarter period, (A) would have been at least 2.00 to 1 or (bB) 5.0% of would have been greater than such Fixed Charge Coverage Ratio immediately prior to such acquisition or merger; (22) Non-Recourse Product Financing Indebtedness; provided, however, that the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent aggregate principal amount of any such Indebtedness, when taken together with all other Indebtedness denominated in a foreign currency and of Holdings or any Restricted Subsidiary incurred pursuant to this clause (22) and then outstanding, does not exceed $100.0 million; (23) Indebtedness consisting of: (a) obligations of Holdings or any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness Restricted Subsidiary under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing deferred compensation or other discount security, similar arrangements incurred by such Person in connection with any Permitted Investment; (b) the payment financing of interest on any Indebtedness insurance premiums; (c) take-or-pay obligations contained in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, providedsupply arrangements, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case ordinary course of dividends, by the fraction specified in clause business; and (4)(b24) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium cash management obligations and other Indebtedness in respect of Indebtedness or Disqualified Stock or preferred securities arising netting services, overdraft protections and similar arrangements, in each case in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities cash management and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includeddeposit accounts.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed not to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 £115.0 million plus 20.0and 132% of the Company’s Consolidated Net Tangible Assets as EBITDA, plus in the case of any refinancing of any Indebtedness permitted under this clause (1) or any portion thereof, the date aggregate amount of incurrencefees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing; (ii2) Indebtedness outstanding on the incurrence by the Company or its Restricted Subsidiaries of the Existing IndebtednessIssue Date; (iii3) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Second Lien Notes, guarantees of the Second Lien Notes, the Senior Secured Notes (other than Additional Senior Secured Notes), and the related Subsidiary Senior Secured Notes Guarantees issued on the Issue Date(including any future Senior Secured Notes Guarantees); (iv4) the incurrence by the Company or any Restricted Subsidiary of its Restricted Subsidiaries of (A) Indebtedness represented by representing Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, obligations incurred for the purpose of financing all or any part of the purchase price price, lease expense, rental payments or cost of construction design, construction, installation or improvement of property, plant or equipment or other assets (including Capital Stock) used in the business of the Company or any of its Restricted Subsidiaries, (B) Indebtedness otherwise incurred to finance the purchase, lease, rental or cost of design, construction, installation or improvement of property (real or personal) or equipment that is used or useful in a Permitted Business, whether through the direct purchase of assets or the Capital Stock of any Person owning such Restricted Subsidiaryassets, and any Indebtedness which refinances, replaces or refunds such Indebtedness, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred or issued to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 of, at any time outstanding, £20.0 million or (b) 2.523% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceEBITDA; (v5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries Subsidiary of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness or Disqualified Stock that was permitted by this Indenture to be (other than intercompany Indebtedness) incurred under Section 4.09(a) or clause (ii2), (iii3), (xiii5), (13) or (xvi19) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary of intercompany Indebtedness between or among the Company and or any of its Restricted SubsidiariesSubsidiary; provided, however, provided that: (aA) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, Issuer or if a any Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor payee is not the obligeeIssuer or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantorunsecured; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a) of this Indenture will not prohibit the incurrence or issuance of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred securities stock (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or and/or any Subsidiary Guarantor (and the Subsidiary Guarantee thereof by the Subsidiary Guarantors) of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more the Credit Facilities, provided that, Agreement and other Debt Facilities entered into after giving effect to any such incurrence, the Issue Date in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) and then outstanding does not to exceed (except as permitted by the greater definition of “Permitted Refinancing Indebtedness”) the sum of (ai) $1.7 1.05 billion or and (bii) $750.0 million plus 20.0% any additional amount so long as, in the case of this subclause (ii), after giving effect thereto the Secured Net Leverage Ratio (treating all incurred Indebtedness under this clause (1) as secured by Liens on the assets of the Company’s Consolidated Net Tangible Assets as of the date of incurrence) would not exceed 3.00 to 1.00; (ii2) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness, including the Existing Notes and the related Guarantees; (iii3) the incurrence by the Company and the Subsidiary Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue DateGuarantees; (iv4) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Indebtedness represented by (including Capital Lease Obligations), mortgage financings Disqualified Stock or purchase money obligationspreferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of construction design, construction, lease, installation or improvement of property, plant any fixed or equipment used in the business of capital assets and any Indebtedness assumed by the Company or any of its Restricted Subsidiaries in connection with the acquisition of any such Restricted Subsidiaryassets or secured by a Lien on any such assets prior to the acquisition thereof, in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 30.0 million or and (b) 2.5% of the Company’s Consolidated Net Tangible Total Assets as of the date of incurrenceand at any time outstanding; (v5) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness (other than intercompany Indebtedness) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) of this Indenture or clause clauses (ii2), (iii3), (xiii4), (5), (13), (15) or (xvi18) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeCompany or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is in the obligor on such Indebtedness and neither case of the Company nor another Guarantor is or the obligeeSubsidiary Guarantee, such Indebtedness must be expressly subordinated in the case of a Subsidiary Guarantor, except to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of extent such Guarantorsubordination would violate any applicable law, rule or regulation; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company Company, will be deemed, in each case, to constitute an a new incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was which new incurrence is not permitted by this clause (vi6); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi7) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or shares of preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y):: (aA) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (bB) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either the Company or a Restricted Subsidiary of the Company shall Company, will be deemed, in each case, to constitute an a new issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was which new issuance is not permitted by this clause (xi7); (xii8) the incurrence by the Company or any of its Restricted Subsidiaries of Hedging Obligations in the ordinary course of business and not for speculative purposes; (9) the guarantee: (A) by the Company or any of the Subsidiary Guarantors of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to the Notes, then the guarantee shall be subordinated to the same extent as the Indebtedness guaranteed; and (B) by any Non-Guarantor Subsidiary of Indebtedness of a Non-Guarantor Subsidiary; (10) the incurrence by the Company or any of its Restricted Subsidiaries of liability Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, letters of credit, performance bonds, surety bonds, appeal bonds or other similar bonds in the ordinary course of business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with respect to workers’ compensation claims, or the incurrence of other Indebtedness of any Unrestricted Subsidiary of the Company with respect to reimbursement type obligations regarding workers’ compensation claims, such obligations are reimbursed within 30 days following such drawing or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that so long as such Indebtedness is extinguished within five Business Days of incurrenceDays; (xv12) the incurrence of Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of the Company or any Restricted Subsidiary; (13) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred securities stock by any Non-Guarantor Subsidiary in an aggregate principal amount, including all Permitted Refinancing Indebtedness (except as permitted by the definition of “Permitted Refinancing Indebtedness”) and Replacement Preferred Stock (except as permitted by the definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any of the Company and the Restricted Subsidiaries Indebtedness incurred pursuant to the extent the net proceeds thereof are concurrently this clause (a) used 13), not to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Tenexceed $20.0 million at any time outstanding; (xvi14) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business; (15) Indebtedness, Disqualified Stock or preferred stock of Persons that are acquired by the Company or any Restricted Subsidiary (including by way of merger or consolidation) in accordance with the terms of this Indenture; and Indebtedness, Disqualified Stock or preferred stock of the Company or a Subsidiary Guarantor incurred in connection with, or to provide all or a portion of the funds or credit support utilized to consummate, the transaction or series of related transactions pursuant to which such Person became a Subsidiary or was acquired by the Company; provided that after giving effect to such acquisition, merger or consolidation, either (A) the Company would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.09(a) of this Indenture or (B) the Company’s Fixed Charge Coverage Ratio after giving pro forma effect to such acquisition, merger or consolidation would be greater than the Company’s actual Fixed Charge Coverage Ratio immediately prior to such acquisition, merger or consolidation; (16) Indebtedness of the Company or a Restricted Subsidiary in respect of netting services, overdraft protection and otherwise in connection with deposit accounts; provided that such Indebtedness remains outstanding for ten Business Days or less; (17) the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction; (18) the incurrence or issuance by the Company or any of its Restricted Subsidiaries consisting of additional Indebtedness, Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness (except as permitted by the financing definition of insurance premiums in customary amounts consistent with “Permitted Refinancing Indebtedness”) and all Replacement Preferred Stock (except as permitted by the operations definition of “Replacement Preferred Stock”) incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness, Disqualified Stock and business preferred stock incurred or issued pursuant to this clause (18), not to exceed the greater of the Company (A) $90.0 million and the Restricted Subsidiaries; and(B) 7.5% of Total Assets at any time outstanding; (xvii19) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or in the issuance by form of loans from a Captive Insurance Subsidiary; (20) Indebtedness representing deferred compensation to employees of the Company or any of and its Restricted Subsidiaries incurred in the ordinary course of Disqualified Stockbusiness; provided thatand (21) Indebtedness in respect of promissory notes issued to consultants, after giving effect to any such incurrence employees or issuancedirectors or former employees, the aggregate principal amount consultants or directors in connection with repurchases of all Indebtedness incurred and Disqualified Stock issued under Equity Interests permitted by Section 4.07(c)(7) of this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuanceIndenture. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness (or Disqualified Stock any portion thereof) at any time, whether at the time of incurrence or preferred securities (including Acquired Debt) upon the application of all or a portion of the proceeds thereof or subsequently meets the criteria of more than one of the categories of Permitted Debt described in clauses (i1) through (xvii21) above, or is entitled to be incurred pursuant to Section 4.09(a)) of this Indenture, the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness on the date of its incurrence, or Disqualified Stock later reclassify all or preferred securities a portion of such item of Indebtedness, in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any 4.09 except that Indebtedness under the Credit Facilities Agreement outstanding on the Issue Date shall will be considered deemed to have been incurred under in reliance on the exception provided by Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to 4.09(b)(1) of this paragraphIndenture. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred securities stock in the form of additional shares of the same class of Disqualified Stock or preferred securities stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities stock for purposes of this Section 4.09, provided, ; provided in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjustedother than the reclassification of preferred stock as Indebtedness due to a change in accounting principles). For purposes of determining compliance with any dollar-denominated restriction on the incurrence of Indebtedness, the dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of dividendsterm debt, by or first committed, in the fraction specified case of revolving credit debt; provided that if such Indebtedness is incurred to extend, replace, refund, refinance, renew or defease other Indebtedness denominated in clause a foreign currency, and such extension, replacement, refunding, refinancing, renewal or defeasance would cause the applicable dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such extension, replacement, refunding, refinancing, renewal or defeasance, such dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being extended, replaced, refunded, refinanced, renewed or defeased, plus the aggregate amount of fees, underwriting discounts, premiums (4)(bincluding tender premiums) and other costs and expenses (including original issue discount) incurred in connection with such refinancing. The amount of any Indebtedness outstanding as of any date will be: (1) the accreted value of the definition Indebtedness, in the case of “Fixed Charges”). For purposes of this Section 4.09, any Indebtedness issued with original issue discount; (i2) the accrual principal amount of an obligation to pay a premium the Indebtedness, in the case of any other Indebtedness; and (3) in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with of another Person secured by a Lien on the issuance assets of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Furtherspecified Person, the accounting reclassification lesser of: (A) the Fair Market Value of any obligation or Disqualified Stock or preferred securities such assets at the date of determination; and (B) the amount of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedPerson.

Section 4. 09(a) will 10.1 above shall not prohibit the incurrence or issuance Incurrence of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (ia) the incurrence Incurrence by the Company and its Subsidiaries (other than the Issuer) of drawn and undrawn commitments of Existing Debt, provided that the Existing Debt incurred under any single Existing Facility may not exceed the maximum available commitment of the lenders under such Existing Facility on the Amendment and Restatement Date; (b) the Incurrence by the Company or any Subsidiaries (other than the Issuer) of guarantees of term loans and working capital facilities extended to plasma farmers in connection with their purchase of ponds (other than the AWS Ponds) and other assets meeting the definition of Permitted Business from the Company or any Restricted Subsidiary pursuant to the Nucleus Partnership Project (other than assets relating to the AWS Ponds); (c) the Incurrence by the Issuer, the Company and Subsidiary Guarantors of Indebtedness represented by the Notes and the related Note Guarantees to be issued on the Amendment and Restatement Date; (d) the Incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred Incurred under Section 4.09(a) or clause clauses (iia), (iiib), (xiiic) or and (xvij) of this Section 4.09(b) or this clause (v)4.10.2; (vie) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries (other than the Issuer) of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (ai) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Notes, in the case of the Issuer, or if the Note Guarantee, in the case of a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (bii) (iA) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held (as an asset) by a Person other than the Company or a Restricted Subsidiary of the Company and (iiB) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company Company, will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) Incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vie); (viiiii) no Subsidiary Guarantor may incur any intercompany Indebtedness to any Subsidiary that is not also a Subsidiary Guarantor; (f) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries Subsidiary Guarantors of obligations under Hedging Contracts Obligations in the ordinary course of business and not for speculative purposesbusiness; (viiig) the guarantee by the Company or any of its Restricted Subsidiaries a Subsidiary Guarantor of Indebtedness of a Subsidiary Guarantor or Restricted Subsidiary of the Company or any of its Restricted Subsidiaries that was permitted to be incurred Incurred by another provision of this Section 4.09covenant; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed; (ixh) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries Subsidiary Guarantor of Indebtedness in respect of workers’ compensation claims, self-insuranceinsurance obligations, bidbankers’ acceptances, performanceletters of credit for trade, performance and surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xii) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence Guarantor of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; providedfunds, however, that so long as such Indebtedness is extinguished within covered with five Business Days of incurrenceDays; (xvj) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries Subsidiary Guarantor of additional Indebtedness Incurred for working capital purposes in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness Incurred to renew, refund, refinance, replace, defease or the issuance by the Company discharge any such additional Indebtedness, not to exceed: (1) IDR 250 billion, or any of its Restricted Subsidiaries of Disqualified Stock; (2) from and including January 1, 2015, provided that, after giving effect Actual Consolidated EBITDA for the four-quarterly period ending immediately prior to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) on which such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same termsis incurred is equal to or greater than Projected Consolidated EBITDA for such four-quarterly period, and the payment of dividends on Disqualified Stock or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedIDR 450 billion.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 1.0 billion or (b) $750.0 725.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a07(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (i) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness represented by the Securities; (including letters of creditii) under one or more Credit Facilities, provided that, Indebtedness represented by the Company’s 5.00% Convertible Senior Notes due 2025 (the “5.00% Convertible Senior Notes”) outstanding after giving effect to the transactions contemplated by the Exchange Agreement or any such incurrence, Indebtedness of the Company that serves to refund or refinance the 5.00% Convertible Senior Notes so long as the principal amount of the refunding or refinancing Indebtedness does not exceed the outstanding principal amount of the 5.00% Convertible Senior Notes; (iii) Indebtedness incurred by the Company or its Subsidiaries not to exceed the sum of (i) the product of (x) $7.00 and (y) the number of barrels of Proved Plus Probable Reserves and (ii) Cash Equivalents less the aggregate principal amount of all the Securities outstanding less the aggregate principal amount of the 5.00% Convertible Senior Notes less any Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to refund or refinance the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.05.00% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue DateConvertible Senior Notes; (iv) Indebtedness that is nonrecourse to the incurrence Company or any of its Subsidiaries used to finance projects or acquisitions, joint ventures or partnerships, including Indebtedness of Persons that are acquired by the Company or any Subsidiary or merged into the Company or a Subsidiary; (v) Indebtedness incurred by the Company or any of its Restricted Subsidiaries constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness represented by Capital Lease Obligationswith respect to reimbursement-type obligations regarding workers’ compensation claims; (vi) Indebtedness arising from agreements of the Company or one of its Subsidiaries providing for indemnification, mortgage financings adjustment of purchase price or purchase money similar obligations, in each case, incurred for or assumed in connection with the purpose disposition of financing all any business, assets or any part a Subsidiary of the purchase price or cost of construction or improvement of property, plant or equipment used in the business Company; (vii) Indebtedness of the Company owed to and held by any of its Subsidiaries or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred of a Subsidiary of the Company owed to extend, refinance, renew, replace, defease and held by the Company or refund any Indebtedness incurred pursuant one of its Subsidiaries; (viii) shares of preferred stock of a Subsidiary of the Company issued to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million Company or (b) 2.5% a Subsidiary of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (vix) the incurrence or issuance by Hedging Obligations of 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viiix) the guarantee obligations in respect of performance and surety bonds and performance and completion guarantees provided by the Company or any of its Restricted Subsidiaries or obligations in respect of Indebtedness letters of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising credit related thereto, in each case in the ordinary course of business and or consistent with past practice; (xxi) the incurrence any guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance so long as the incurrence of such Disqualified Stock or preferred securities Indebtedness incurred by such Restricted Subsidiary or is permitted under the Company, as applicable, that was not permitted by terms of this clause (xi)Indenture; (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt arising in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising customary cash management services and from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;and (xvxiii) any guarantee by the Company of other obligations of any Subsidiary of the Company so long as the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or by such Subsidiary is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes terms of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedIndenture.

Section 4. 09(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or the issuance of any of the following items of Disqualified Stock or preferred securities stock (collectively, “"Permitted Debt”) described below:"): (i1) the incurrence by the Company or Issuer and/or any Guarantor (and the Guarantee thereof by the Guarantors and the Non-Guarantor Subsidiaries) of its Restricted Subsidiaries Indebtedness under the Credit Agreement and other Credit Facilities entered into after the date of additional Indebtedness (including letters of credit) under one or more the Credit Facilities, provided that, after giving effect to any such incurrence, the Agreement in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company Issuer and its Restricted Subsidiaries thereunder) not to exceed $1,000.0 million, less the aggregate amount of all Net Proceeds of Asset Sales applied by the Issuer or any of its Restricted Subsidiaries since the Issue Date to repay any term Indebtedness under a Credit Facility or to repay any revolving credit Indebtedness under a Credit Facility and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceeffect a corresponding commitment reduction thereunder pursuant to Section 4.10; (ii2) the incurrence by the Company or Issuer and its Restricted Subsidiaries of the Existing IndebtednessIndebtedness after giving effect to the Transactions; (iii3) the incurrence by the Company Issuer and the Guarantors of Indebtedness represented by the Initial Notes to be issued on the Issue Date, replacement Notes in respect thereof, if any, and the related Subsidiary Guarantees and the Exchange Notes and related Subsidiary Guarantees to be issued on pursuant to the Issue DateRegistration Rights Agreement; (iv4) the incurrence or issuance by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness represented by (including Capital Lease Obligations), mortgage financings Disqualified Stock or purchase money obligationspreferred stock, in each case, incurred or issued for the purpose of financing all or any part of the purchase price or cost of construction design, construction, lease, installation or improvement of property, plant or equipment used or useful in the business of the Company or such Restricted Subsidiarya Permitted Business, in an aggregate principal amount, including all Permitted Refinancing Indebtedness and Replacement Preferred Stock incurred to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to exceed $40.0 million at any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencetime outstanding; (v5) the incurrence or issuance by the Company Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness or Replacement Preferred Stock in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness (other than intercompany Indebtedness) or any Disqualified Stock or preferred stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii2), (iii3), (xiii4), (5), (13), (15), (17) or (xvi18) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company Issuer and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company Issuer or any Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeIssuer or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Issuer or if the Subsidiary Guarantee, in the case of a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligeeGuarantor, such Indebtedness must be expressly subordinated except to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of extent such Guarantorsubordination would violate any applicable law, rule or regulation; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Issuer or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor Issuer or a Restricted Subsidiary of the Company will Subsidiary, shall be deemed, in each case, to constitute an a new incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company Issuer or such Restricted Subsidiary, as the case may be, that was which new incurrence is not permitted by this clause (vi6); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi7) the issuance by (x) any of the Company’s Issuer's Restricted Subsidiaries to the Company Issuer or to any of its Restricted Subsidiaries of any Disqualified Stock or shares of preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y):: (aA) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company Issuer or a Restricted Subsidiary of the CompanySubsidiary; and (bB) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either the Company Issuer or a Restricted Subsidiary of the Company shall Subsidiary, will be deemed, in each case, to constitute an a new issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was which new issuance is not permitted by this clause (xi7); (xii) 8) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of liability Hedging Obligations in respect the ordinary course of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionbusiness; (xiii9) the Guarantee: (A) by the Issuer or any of the Guarantors of Indebtedness of the Issuer or a Restricted Subsidiary that was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed; and (B) by any Non-Guarantor Subsidiary of Indebtedness of a Non-Guarantor Subsidiary; (10) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Acquired Debt Indebtedness in connection respect of workers' compensation claims, self-insurance obligations, bankers' acceptances, letters of credit, performance bonds, surety bonds, appeal bonds or other similar bonds in the ordinary course of business; provided, however, that upon the drawing of letters of credit for reimbursement obligations, including with a merger respect to workers' compensation claims, or consolidation satisfying either one the incurrence of the financial tests set forth in Section 5.01(a)(iv)other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims, such obligations are reimbursed within 30 days following such drawing or incurrence; (xiv11) the incurrence of Indebtedness of by the Company Issuer 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 (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that so long as such Indebtedness is extinguished within five Business Days of incurrenceDays; (xv12) the incurrence of Indebtedness arising from agreements of the Issuer or a Restricted Subsidiary providing for indemnification, adjustment of purchase price, holdback, contingency payment obligations or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of the Issuer or any Restricted Subsidiary; (13) the incurrence of Indebtedness or the issuance of any Disqualified Stock or preferred securities of stock by (i) any Non-Guarantor Subsidiary of the Company and Issuer, in an amount not to exceed $15.0 million at any time outstanding; provided that after giving effect to such incurrence or issuance, the Restricted Subsidiaries Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the extent the net proceeds thereof are concurrently Fixed Charge Coverage Ratio test set forth in Section 4.09(a) and (aii) used any Foreign Subsidiary, in an amount not to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Tenexceed $10.0 million at any time outstanding; (xvi14) the incurrence of Indebtedness resulting from endorsements of negotiable instruments for collection in the ordinary course of business; (15) Indebtedness, Disqualified Stock or preferred stock of Persons that are acquired by the Issuer or any Restricted Subsidiary (including by way of merger or consolidation) in accordance with the terms of this Indenture; provided that such Indebtedness, Disqualified Stock or preferred stock is not incurred in contemplation of such acquisition or merger; and provided further that after giving effect to such acquisition or merger, either (A) the Issuer would be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio; or (B) the Issuer's Fixed Charge Coverage Ratio after giving pro forma effect to such acquisition or merger would be greater than the Issuer's actual Fixed Charge Coverage Ratio immediately prior to such acquisition or merger; (16) Indebtedness of the Company Issuer or any a Restricted Subsidiary in respect of its Restricted Subsidiaries consisting of the financing of insurance premiums netting services, overdraft protection and otherwise in customary amounts consistent connection with the operations and business of the Company and the Restricted Subsidiariesdeposit accounts; andprovided that such Indebtedness remains outstanding for ten Business Days or less; (xvii17) the incurrence by a Receivables Subsidiary of Indebtedness in a Qualified Receivables Transaction; (18) the Company incurrence or issuance by the Issuer or any of its Restricted Subsidiaries of additional Indebtedness, Disqualified Stock or preferred stock in an aggregate principal amount (or accreted value or liquidation preference, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness and all Replacement Preferred Stock incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness, Disqualified Stock and preferred stock incurred or issued pursuant to this clause (18), not to exceed $100.0 million; and (19) the issuance incurrence by the Company Issuer or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, Indebtedness in the aggregate principal amount form of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuanceloans from a Captive Insurance Subsidiary. For purposes of determining compliance with this Section 4.09, in the event that an item of proposed Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i1) through (xvii19) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will Issuer shall be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness on the date of its incurrence, or Disqualified Stock later reclassify all or preferred securities a portion of such item of Indebtedness, in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any 4.09 except that Indebtedness under the Credit Facilities Agreement outstanding on the Issue Date shall will be considered deemed to have been incurred under on such date in reliance on the exception provided by clause (1) of this Section 4.09(a4.09(b), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock or preferred securities stock in the form of additional shares of the same class of Disqualified Stock or preferred securities will stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities stock for purposes of this Section 4.09, provided, ; provided in each such case, that the amount thereof is included in Fixed Charges of the Company Issuer as accrued (adjustedother than the reclassification of preferred stock as Indebtedness due to a change in accounting principles). The amount of any Indebtedness outstanding as of any date will be: (1) the accreted value of the Indebtedness, in the case of dividends, by any Indebtedness issued with original issue discount; (2) the fraction specified in clause (4)(b) principal amount of the definition Indebtedness, in the case of “Fixed Charges”). For purposes of this Section 4.09, any other Indebtedness; and (i3) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with of another Person secured by a Lien on the issuance assets of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Furtherspecified Person, the accounting reclassification lesser of: (A) the Fair Market Value of any obligation or Disqualified Stock or preferred securities such assets at the date of determination; and (B) the amount of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedPerson.

Section 4. 09(a03(a) will shall not prohibit apply to the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted DebtIndebtedness”) described below:): (i) Indebtedness incurred pursuant to any Credit Facility, including the incurrence Guarantees thereof by the Guarantors, in an aggregate amount which, when added to all other Indebtedness incurred pursuant to this clause (i) and then outstanding, does not exceed $800.0 million (any Indebtedness incurred pursuant to the provisions set forth in this clause (i) being herein referred to as “Credit Facility Indebtedness”); (ii) Indebtedness represented by the Notes issued on the Issue Date and the related Notes Guarantees; (iii) Nonrecourse Indebtedness incurred by a Special Purpose Subsidiary under a Permitted Securitization and any Refinancing Indebtedness with respect thereto that is Nonrecourse Indebtedness; (iv) Indebtedness of the Company or any Restricted Subsidiary existing on the Issue Date (other than Indebtedness set forth in clauses (i), (ii) and (iii) of this Section 4.03(b)); (v) Refinancing Indebtedness incurred by the Company or any of its Restricted Subsidiaries of additional to Refinance any Indebtedness (including letters of credit) under one that was incurred as Ratio Indebtedness or more Credit Facilities, provided that, after giving effect as Permitted Indebtedness pursuant to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (iii), (iv), (v) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (bxiv) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencethis Section 4.03(b); (iivi) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Indebtedness owing to and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence held by the Company or any Restricted Subsidiaries; provided, however, that (A) if the Company or the Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated to the prior payment in full in cash of all Notes Obligations and (B)(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being owed to or held by a Person other than the Company or a Restricted Subsidiary and (2) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary shall be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by the provisions set forth in this clause (vi); (vii) Hedging Obligations incurred in the ordinary course of business and not for speculative purposes and, to the extent constituting Indebtedness, Banking Product Obligations; (viii) Guarantees of the Notes and Guarantees of Indebtedness that was incurred as Ratio Indebtedness or as Permitted Indebtedness pursuant to clause (v) (to the extent the Refinanced Indebtedness was so guaranteed), (vii), (ix), (x), (xi), (xiii), (xv) or (xvi) of this Section 4.03(b); provided, however, that if the Indebtedness being Guaranteed is subordinated in right of payment to the Notes or a Notes Guarantee, then such Guarantee shall be subordinated in right of payment to the Notes or such Notes Guarantee to the same extent as the Indebtedness guaranteed; (ix) Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance, or other Indebtedness with respect to obligations in the nature of reimbursement obligations regarding workers’ compensation claims; (x) Indebtedness arising from agreements of the Company or any Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case incurred in connection with the disposition of any business, assets or a Subsidiary; (xi) obligations in respect of performance, bid, appeal, surety and similar bonds and completion guarantees provided by the Company or any Restricted Subsidiary in the ordinary course of business; (xii) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of its Restricted Subsidiaries of incurrence; (xiii) Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, case incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used or useful in a Related Business (where, in the business case of a purchase, such purchase may be effected either directly or through the purchase of the Company Capital Stock of the Person owning such property, plant or such Restricted Subsidiaryequipment), including all Permitted Refinancing and any Indebtedness incurred to extendRefinance such Indebtedness, refinancein an aggregate amount which, renew, replace, defease or refund any when added to all other Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (ivxiii) and then outstanding outstanding, does not exceed the greater of (ax) $25.0 million or 40,000,000 and (by) 2.50.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceTotal Assets; (vxiv) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified StockAcquired Indebtedness; provided, however, that, in after giving effect to the case of merger or acquisition giving rise to the incurrence thereof, immediately after such merger or acquisition either (x) the Company would be permitted to incur at least $1.00 of additional Ratio Indebtedness pursuant to Section 4.03(a) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other the Fixed Charge Coverage Ratio would be greater than the Company Fixed Charge Coverage Ratio immediately prior to such acquisition or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrencemerger; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) promptly used to redeem all purchase Notes tendered pursuant to a Change of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture Control Offer made as described in Article Seven and Article Ten;a result of a Change of Control; and (xvi) the incurrence of additional Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatan aggregate amount which, after giving effect when added to any such incurrence or issuance, the aggregate principal amount of all other Indebtedness incurred and Disqualified Stock issued under pursuant to this clause (xviixvi) and then outstanding outstanding, does not exceed the greater of (ax) $50.0 million or 175,000,000 and (by) 5.02.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedTotal Assets.

Section 4. 09(a10(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:"PERMITTED DEBT"): (i1) the incurrence by the Company or any Guarantor of its Restricted Subsidiaries of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to Facilities in an aggregate amount at any such incurrence, the aggregate principal amount of all Indebtedness incurred time outstanding under this clause (i1) not to exceed $475.0 million, less the amount of Non-Recourse Debt outstanding under clause (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder16) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencebelow; (ii2) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by of the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date, the Note Guarantees and the Exchange Securities to be issued pursuant to the Registration Rights Agreement; (iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted Subsidiary, including all Subsidiaries and Permitted Refinancing Indebtedness incurred in respect thereof, in an aggregate amount not to extend, refinance, renew, replace, defease or refund exceed at any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then time outstanding does not exceed the greater of (aA) $25.0 20.0 million or and (bB) 2.53.0% of the Company’s Consolidated Net Total Tangible Assets as of the date of incurrenceAssets; (v5) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the replacement (through construction, acquisition, lease or otherwise) of one or more Vessels and any assets that shall become Related Assets, upon a total loss, destruction, condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of such Vessel (collectively, a "TOTAL LOSS") in an aggregate amount no greater than the ready for sea cost (as determined in good faith by the Company) for such replacement Vessel, in each case, less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) actually received by the Company or any of its Restricted Subsidiaries from any Person in connection with the Total Loss in excess of amounts actually used to repay Indebtedness secured by the Vessel subject to the Total Loss; (6) Indebtedness of the Company or any Restricted Subsidiary incurred in relation to: (i) maintenance, repairs, refurbishments and replacements required to maintain the classification of any of the Vessels owned, leased, time chartered or bareboat chartered to or by the Company or any Restricted Subsidiary; (ii) drydocking of any of the Vessels owned or leased by the Company or any Restricted Subsidiary for maintenance, repair, refurbishment or replacement purposes in the ordinary course of business; and (iii) any expenditures which will or may be reasonably expected to be recoverable from insurance on such Vessels; (7) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds respect of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock that was (other than intercompany Indebtedness) permitted by this Indenture to be incurred under Section 4.09(a4.10(a) or clause (iiSections 4.10(b)(2), (iiib)(3), (xiiib)(5), (b)(6), (b)(7) or (xvi) of this Section 4.09(b) or this clause (vb)(14); (vi) 8) the incurrence of Indebtedness by the Company owed to a Restricted Subsidiary and Indebtedness by any Restricted Subsidiary owed to the Company or any of its other Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted SubsidiariesSubsidiary; provided, however, that: (a) if the Company is the obligor on that upon any such Indebtedness and Restricted Subsidiary ceasing to be a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, Restricted Subsidiary or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a owed to any Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemedSubsidiary, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may beapplicable, that was shall be deemed to have incurred Indebtedness not permitted by this clause (vi)8); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi9) the issuance by (x) any of the Company’s 's Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any shares of Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y):: (aA) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (bB) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either neither the Company or nor a Restricted Subsidiary of the Company Company; shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was is not permitted by this clause (xi9); (xii10) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect Permitted Hedging Obligations; (11) the guarantee by the Company or any Guarantor of Indebtedness of the Indebtedness of any Unrestricted Company or a Restricted Subsidiary of the Company or any Joint Venture but only that was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being guaranteed is contractually subordinated to the Notes or a Guarantee, then the guarantee shall be contractually subordinated to the same extent that such liability is as the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionguaranteed; (xiii12) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt Indebtedness in connection with a merger respect of workers' compensation claims, unemployment insurance, health, disability and other employee benefits or consolidation satisfying either one property, casualty or liability insurance, self-insurance obligations, bankers' acceptances, or performance, completion, bid, appeal and surety bonds, in each case, in the ordinary course of the financial tests set forth in Section 5.01(a)(iv)business; (xiv13) the incurrence of Indebtedness of 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 (except in the case of daylight overdrafts) drawn against insufficient funds in funds, so long as such Indebtedness is covered within five Business Days; (14) Indebtedness, Disqualified Stock or preferred stock of (x) the ordinary course of businessCompany or a Restricted Subsidiary incurred or issued to finance an acquisition or (y) a Person acquired by the Company or a Restricted Subsidiary or merged, consolidated, amalgamated or liquidated with or into a Restricted Subsidiary or the Company; provided, however, that after giving effect to such incurrence or issuance (and the related acquisition, merger, consolidation, amalgamation or liquidation), the Fixed Charge Coverage Ratio for the Company's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness incurred or the issuance of such Disqualified Stock or preferred securities of any of stock is issued, as the Company and the Restricted Subsidiaries case may be, would have been at least 1.75 to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten1.0; (xvi15) the incurrence of Indebtedness of by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of the financing guarantees, earn-outs, indemnities or obligations in respect of insurance premiums purchase price adjustments in customary amounts consistent connection with the operations and business disposition or acquisition of assets, including, without limitation, shares of Capital Stock; (16) Non-Recourse Debt incurred by a Securitization Subsidiary in a Qualified Securitization Transaction; (17) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit so long each such obligation is satisfied within 30 days of the Company and the Restricted Subsidiariesincurrence thereof; and (xvii18) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatIndebtedness, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (stock in an aggregate amount at any time outstanding, including Acquired Debt) meets the criteria of more than one of the categories of all Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be Refinancing Indebtedness incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii18), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedexceed $25.0 million.

Section 4. 09(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:"PERMITTED DEBT"): (i) the incurrence by the Company Company, any Subsidiary Guarantor or any Xxxx True Temper Properties, Inc. of its Restricted Subsidiaries Indebtedness under Credit Facilities (which excludes the Notes issued on the date of additional Indebtedness (including letters of creditthis Indenture) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the in an aggregate principal amount of all Indebtedness incurred under at any one time outstanding pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries any Subsidiary Guarantors and Xxxx True Temper Properties, Inc. thereunder) and then outstanding does not to exceed the greater of (ax) $1.7 billion 100.0 million, plus the amount of reasonable fees and expenses incurred in connection with extending, refinancing, renewing, replacing or refunding any Credit Facility under which Indebtedness is incurred pursuant to this clause (b) $750.0 million plus 20.0% i), less the aggregate amount of all Net Proceeds of Asset Sales applied by the Company’s Consolidated Net Tangible Assets as , any Subsidiary Guarantors or Xxxx True Temper Properties, Inc. to permanently repay any Indebtedness under Credit Facilities (and, in the case of any revolving credit Indebtedness under a Credit Facility, to effect a corresponding commitment reduction thereunder) pursuant to Section 4.10 and (y) the Domestic Borrowing Base on such date of incurrence; (ii) the incurrence of Existing Indebtedness by the Company or and its Restricted Subsidiaries of the Existing IndebtednessSubsidiaries; (iii) the incurrence by the Company and the any Subsidiary Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees to be issued on the Issue Datedate of this Indenture and any related Note Guarantees and the Exchange Notes and any related Note Guarantees to be issued therefor pursuant to the Registration Rights Agreement; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price price, or cost of construction or improvement improvement, of propertyproperty (real or personal), plant or equipment used in the business of the Company or any of its Restricted Subsidiaries (whether through the direct acquisition of such Restricted Subsidiaryassets or the acquisition of Equity Interests of any Person owning such assets) in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect not to exceed, at any such incurrencetime outstanding, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ax) $25.0 10.0 million or and (by) 2.55% of the Company’s Consolidated Net Total Tangible Assets as of the date of incurrenceAssets; (v) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto refund, extend, refinance, renew, replace, defease refinance or refund replace Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii), (iii), (xiiiiv), (v), (xiv), (xvi) or (xvixviii) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and or any of its Restricted Subsidiaries; provided, however, that: (a) if the Company or any Subsidiary Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeCompany or a Subsidiary Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or if a Guarantor is Note Guarantee, in the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash case of all Obligations with respect to the a Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company thereof and (ii) any sale or other transfer of any such Indebtedness (other than solely as a result of the creation of a Permitted Lien upon such intercompany Indebtedness) to a Person that is neither not either the Company nor or a Restricted Subsidiary of the Company will thereof, shall be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts Obligations that are incurred in the ordinary course of business for the purpose of fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes; (viii) the guarantee Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any a Restricted Subsidiary of its Restricted Subsidiaries the Company that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities stock in the form of additional shares of the same class of Disqualified Stock or preferred securities will stock shall not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities stock for purposes of this Section 4.09, ; provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued accrued; (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (ix) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of by the Company or any of its Restricted Subsidiaries as of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business, including, without limitation, letters of credit in respect of workers' compensation claims or Disqualified Stock self-insurance, or preferred securities will not be deemed an other Indebtedness with respect to reimbursement type obligations regarding workers' compensation claims or self-insurance; provided, however, that, upon the drawing of such instruments or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (xi) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or such Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the sale or other disposition of any business, assets or Capital Stock of the Company or a Restricted Subsidiary of the Company, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided that the maximum assumable liability in respect of that Indebtedness shall at no time exceed the gross proceeds including noncash proceeds (the fair market value of those noncash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and/or that Restricted Subsidiary in connection with that disposition; (xii) the issuance of Disqualified Stock or preferred securities stock by any of the Company's Restricted Subsidiaries issued to the Company or another Restricted Subsidiary of the Company; provided that (x) any subsequent issuance or transfer of any Equity Interests that results in such Disqualified Stock or preferred stock being held by a Person other than the Company or a Restricted Subsidiary thereof and (y) any sale or other transfer of any such shares of Disqualified Stock or preferred stock (in each case, other than solely as a result of the creation of a Permitted Lien upon such Equity Interests, Disqualified Stock or preferred stock) to a Person that is not either the Company or a Restricted Subsidiary thereof shall be deemed, in each case, to constitute an issuance of such shares of Disqualified Stock or preferred stock that was not permitted by this clause (xii); (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations (including letters of credit) in respect of performance, completion and surety bonds, completion guarantees and similar obligations provided by the Company or such Restricted Subsidiary in the ordinary course of business; (xiv) the incurrence by the Company or any Restricted Subsidiary of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xiv), not to exceed $10.0 million; (xv) contingent liabilities arising out of endorsements of checks and other negotiable instruments for purposes deposit or collection in the ordinary course of business; (xvi) the incurrence by the Company or a Restricted Subsidiary of the Company of Acquired Debt in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xvi), not to exceed $7.5 million; (xvii) the incurrence by the Company of Indebtedness that is subordinated to the Notes in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xvii), not to exceed $5.0 million; (xviii) 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 (5) five Business Days; and (xix) the incurrence by any Foreign Restricted Subsidiary of Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (xix), not to exceed the sum of (x) $10.0 million and (y) the amount of the Foreign Borrowing Base as of the date of any such incurrence. 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 the exchange rate of currencies. For purposes of determining any particular amount of Indebtedness under compliance with this Section 4.09, in the event that any proposed Indebtedness (ior portion thereof) guarantees ofmeets the criteria of more than one of the categories of Permitted Debt described in Sections 4.09(b)(i) through (xix) above, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also is entitled to be included and (ii) if obligations in respect of letters of credit are incurred or issued pursuant to a Section 4.09(a), the Company, in its sole discretion, shall be permitted to divide and to classify such item of Indebtedness on the date of its incurrence, and at any time and from time to time may reclassify, in any manner that complies with this Section 4.09 at such time. Indebtedness under the Credit Facility and are being treated as Agreement outstanding on the date of this Indenture shall be deemed to have been incurred pursuant to on such date in reliance on the exception provided by clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a10(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company Issuer or a Guarantor of Indebtedness under the Credit Agreement together with the incurrence by Holdings or any Restricted Subsidiary of its Restricted Subsidiaries the guarantees thereunder and the issuance and creation of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the maximum potential liability face amount thereof), up to an aggregate principal amount of $1,790 million outstanding at any one time, less the Company amount of all mandatory principal payments (with respect to revolving borrowings and its Subsidiaries thereunderletters of credit, only to the extent revolving commitments are correspondingly reduced) and then outstanding does not exceed actually made by the greater borrower thereunder in respect of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Indebtedness thereunder with Net Tangible Assets as of the date of incurrenceProceeds from Asset Sales; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Issuer and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees (including any Guarantee thereof) issued on the Issue Date; (iv) Date and the incurrence by the Company or any of its Restricted Subsidiaries Issuer and the Guarantors of Indebtedness represented by Capital the Exchange Notes issued in exchange for the Notes issued on the Issue Date (including any Guarantee thereof); (3) Existing Indebtedness (other than Indebtedness described in clauses (1), or (2)); (4) Indebtedness (including Capitalized Lease Obligations, mortgage financings or purchase money obligations, in each case, ) incurred for the purpose of financing all by Holdings or any part of Restricted Subsidiary to finance the purchase price or cost of construction purchase, lease or improvement of property, plant property (real or personal) or equipment that is used or useful in a Permitted Business (whether through the business direct purchase of assets or the Company or Capital Stock of any Person owning such Restricted Subsidiaryassets) in an aggregate principal amount that, including when aggregated with the principal amount of all Permitted Refinancing other Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness then outstanding and incurred pursuant to this clause (iv4), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (ax) $25.0 million and (y) $25.0 million plus or (b) 2.5minus, as applicable, an amount equal to 2% of the Company’s Consolidated Net Tangible Assets Income of Holdings for the period (taken as one accounting period) from January 1, 2005 to the end of Holdings’ fiscal quarter most recently ended prior to the date of incurrenceon which such Indebtedness is incurred; (v5) the incurrence or issuance Indebtedness incurred by the Company Holdings 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations Subsidiary constituting reimbursement obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash letters of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds credit issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations letters of the Company credit in respect of workers’ compensation claims, health, disability or any of its Restricted Subsidiaries other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to letters of credit supporting such reimbursement-type obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockregarding workers’ compensation claims; provided, however, thatthat upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (6) Indebtedness arising from agreements of Holdings or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the case disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (xA) such Indebtedness is not reflected on the balance sheet of Holdings or any Restricted Subsidiary (y):contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet shall not be deemed to be reflected on such balance sheet for purposes of this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by Holdings and any Restricted Subsidiaries in connection with such disposition; (a7) Indebtedness of Holdings owed to and held by any Restricted Subsidiary or Indebtedness of a Restricted Subsidiary owed to and held by Holdings or any other Restricted Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Equity Interests any Capital Stock or any other event that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Company; and (b) or any sale or other subsequent transfer of any such Disqualified Stock or preferred securities Indebtedness (except to a Person that is not either the Company Holdings or a Restricted Subsidiary of the Company Subsidiary) shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof and (B) if the Issuer or a Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated in right of payment to all obligations of the Issuer or such Guarantor with respect to the Notes; (8) shares of Preferred Stock of a Restricted Subsidiary issued to Holdings or a Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to Holdings or a Restricted Subsidiary) shall be deemed in each case to be an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi)shares of Preferred Stock; (xii9) Hedging Obligations of Holdings or any Restricted Subsidiary (excluding Hedging Obligations entered into for speculative purposes) for the incurrence purpose of limiting (A) interest rate risk with respect to any Indebtedness that is permitted by the Company terms of this Indenture to be outstanding or (B) exchange rate risk with respect to any of its Restricted Subsidiaries of liability currency exchange; (10) obligations in respect of the Indebtedness of any Unrestricted Subsidiary of the Company performance and surety bonds and performance and completion guarantees provided by Holdings or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating torelated thereto, Indebtedness otherwise included in each case in the determination ordinary course of such business or consistent with past practice; (11) Indebtedness of the Issuer or any Guarantor or Preferred Stock of any Restricted Subsidiary that is a Guarantor not otherwise permitted hereunder in an aggregate principal amount shall not also be included or liquidation preference which, when aggregated with the principal amount and (ii) if obligations in respect liquidation preference of letters of credit are all other Indebtedness and Preferred Stock then outstanding and incurred pursuant to a Credit Facility and are being treated as incurred pursuant to this clause (i11), does not at any one time outstanding exceed $125.0 million; (12) (x) any guarantee by the Issuer or a Guarantor of Indebtedness or other obligations of any Restricted Subsidiary (other than the Issuer) so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes or the Guarantee of such Restricted Subsidiary or Holdings, as applicable, any such guarantee of such Guarantor with respect to such Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or the Guarantee of such Restricted Subsidiary or Holdings, as applicable, (y) any guarantee by a Restricted Subsidiary that is not a Guarantor of Indebtedness of another Restricted Subsidiary that is not a Guarantor incurred in accordance with the terms of this Indenture, and (z) any guarantee by a Guarantor of Indebtedness of the definition Issuer incurred in accordance with the terms of this Indenture; (13) the incurrence by Holdings or any Restricted Subsidiary of Indebtedness or Preferred Stock that serves to refund or refinance any Indebtedness incurred as permitted under Section 4.10(a) or clauses (2), (3) or (4) above, this clause (13) or clauses (14) or (21) below or any Indebtedness issued to so refund or refinance such Indebtedness including additional Indebtedness incurred to pay premiums and fees in connection therewith (the “Permitted Debt” and Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the letters time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of credit relate the Indebtedness being refunded or refinanced, (B) to other Indebtednessthe extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Notes or the Guarantees, then such other Refinancing Indebtedness is subordinated or pari passu to the Notes or the Guarantees at least to the same extent as the Indebtedness being refinanced or refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a Subsidiary that is not a Guarantor that refinances Indebtedness or Preferred Stock of the Issuer or a Guarantor or (y) Indebtedness or Preferred Stock of Holdings or a Restricted Subsidiary that refinances Indebtedness or Preferred Stock of an Unrestricted Subsidiary, (D) shall not be included.in a principal amount in excess of the principal amount of, premium, if any, accrued interest on, and related fees and expenses of, the Indebtedness being refunded or refinanced and (E) shall not have a stated maturity date prior to the Stated Maturity of the Indebtedness being refunded or refinanced; and provided further, that subclauses (A), (B) and (E) of this clause (13) shall not apply to any refunding or refinancing of any Senior Debt;

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a8(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i) the incurrence by the Parent Company or and any Restricted Subsidiary of its Restricted Subsidiaries of additional Indebtedness under the ABL Facility (including letters of creditamounts outstanding on the Issue Date) under one or more Credit Facilities, Permitted Additional Pari Passu Obligations; provided that, after giving effect to any such incurrence, that the aggregate principal amount of all Indebtedness incurred under permitted by this clause (i) (with letters of credit being deemed to have a ), including the aggregate outstanding principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then Notes, at any one time outstanding does not exceed $250 million less any repayments actually made thereunder with the greater Net Proceeds of (a) $1.7 billion or Asset Sales in accordance with clause (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as second paragraph of Section 4.6; provided, further, that (A) the Company will not request or allow any increase in the commitments of the date lenders under the ABL Facility to an amount in excess of incurrence$190 million without the prior consent of the Majority Noteholders; and (B) any portion of such $250 million basket referred to above which is in excess of the sum of (A) the outstanding principal amount of the Notes and (B) the unused commitments and outstanding principal amount under the ABL Facility, may be used solely to incur unsecured Indebtedness; (ii) the incurrence by the Parent Company or and its Restricted Subsidiaries of Existing Indebtedness outstanding on the Existing IndebtednessIssue Date (excluding amounts described in clauses (i) and (iii) of this paragraph); (iii) the incurrence by the Company and the Guarantors of (x) Indebtedness represented by the Initial Notes and the Note Guarantees outstanding on the Issue Date, (y) Indebtedness represented by the Senior Priority Notes and the related Subsidiary Guarantees issued on the Issue Date and (z) Indebtedness represented by the Junior Priority Notes and the related Guarantees outstanding on the Issue Date; (iv) the incurrence by the Parent Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Parent Company or such Restricted Subsidiary, in an aggregate principal amount (including all Permitted Refinancing Indebtedness incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect ) not to exceed $50 million at any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencetime outstanding; (v) the incurrence or issuance by the Parent Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renewdefease, discharge or replace, defease or refund Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was is permitted by this Indenture Note Purchase Agreement to be incurred under Section 4.09(a4.8(a) or clause (ii), (iii), (xiiiiv) or (xviix) of this Section 4.09(b) or this clause (v4.8(b); (vi) the incurrence by the Parent Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Parent Company and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company or any Guarantor is the obligor on such Indebtedness and such Indebtedness is owed to or held by a Guarantor Restricted Subsidiary that is not the obligeeCompany or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Note Guarantee of such Guarantor, in the case of a Guarantor; and (bB) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Parent Company or a Restricted Subsidiary of the Company thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Parent Company nor or a Restricted Subsidiary of the Company will thereof, shall be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Parent Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Parent Company or any of its Restricted Subsidiaries of obligations under (a) Hedging Contracts Obligations that are incurred for the purpose of hedging interest rate risk with respect to any Indebtedness that is permitted by the Note Purchase Documents to be outstanding and (b) other Hedging Obligations incurred in the ordinary course of business and not for speculative purposesbusiness; (viii) the guarantee by the Parent Company or any of its Restricted Subsidiaries of Indebtedness of the Parent Company or any of its a Restricted Subsidiaries Subsidiary that was permitted to be incurred by another provision of this Section 4.094.8; (ix) the incurrence by the Parent Company or any of its Restricted Subsidiaries of obligations relating additional Indebtedness in an aggregate principal amount (or accrued value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practicerefund, refinance or replace any Indebtedness incurred pursuant to this clause (ix), not to exceed $75 million; (x) the incurrence by the Parent Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurancejudgment, bidappeal, performancesurety, surety performance and similar bonds issued for other like bonds, bankers acceptances and letters of credit provided by the account of the Parent Company and any of its Restricted Subsidiaries in the ordinary course of businessbusiness (including any similar Indebtedness incurred to refinance, including guarantees and obligations of the Company retire, renew, defease, refund, discharge or otherwise replace any of its Restricted Subsidiaries with respect Indebtedness referred to letters of credit supporting such obligations in this clause (in each case other than an obligation for money borrowedx);); and (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence indebtedness incurred by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Parent Company or any of its Restricted Subsidiaries arising from the honoring by a bank agreements or other financial institution their respective bylaws providing for indemnification, adjustment of a check, draft purchase price or similar instrument inadvertently (except in obligations, or from guarantees of letters of credit, surety bonds or performance bonds securing the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any performance of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Parent Company or any of its Restricted Subsidiaries consisting to any Person acquiring all or a portion of the financing of insurance premiums in customary amounts consistent with the operations and business or assets of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Parent Company or any of its a Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedSubsidiary.

Section 4. 09(a3(a) will not prohibit the incurrence or issuance of any Incurrence of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence Incurrence by the Company or any Guarantor of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, ; provided that, after giving effect to any such incurrenceIncurrence, the aggregate principal amount of all Indebtedness incurred under Incurred pursuant to this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder1) and then outstanding does not exceed the greater of (aA) $1.7 billion 500.0 million less the aggregate amount of all Net Proceeds of Asset Sales applied by the Parent Guarantor or any Restricted Subsidiary thereof to permanently repay any such Indebtedness pursuant to Section 4.7 or (bB) $750.0 300.0 million plus 20.020% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceParent Guarantor; (ii2) the incurrence by the Company or its Restricted Subsidiaries Incurrence of the Existing Indebtedness; (iii3) the incurrence Incurrence by the Company and the Guarantors of Indebtedness represented by (A) the Initial Notes Securities, (B) any Exchange Securities issued pursuant to the Registration Rights Agreement in exchange for the Securities and (C) the related Subsidiary Guarantees issued on the Issue DateSecurity Guarantees; (iv4) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries Guarantor of Indebtedness represented by Capital Lease Obligations, mortgage financings financings, construction loans or purchase money obligationsobligations for property acquired in the ordinary course of business, in each case, incurred case Incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of by the Company or any such Restricted SubsidiaryGuarantor, including in an aggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness incurred Incurred to extendrefund, refinance, renew, replace, defease refinance or refund replace any Indebtedness incurred Incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv4) and then outstanding does outstanding, not to exceed the greater of (aA) $25.0 75.0 million or (bB) 2.57.5% of the CompanyParent Guarantor’s Consolidated Net Tangible Assets as of the date of incurrenceAssets; (v5) the incurrence or issuance Incurrence by the Company Parent Guarantor or any Restricted Subsidiary of its Restricted Subsidiaries the Parent Guarantor of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to, to extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred Incurred under Section 4.09(a4.3(a) or clause (ii2), (iii3), (xiii4) or (xvi5) of this Section 4.09(b) or this clause (v4.3(b); (vi6) the incurrence Incurrence by the Company Parent Guarantor or any of its Restricted Subsidiaries of intercompany Indebtedness between owing to and held by the Parent Guarantor or among the Company and any of its Restricted Subsidiaries; provided, however, that: (aA) if the Company or any Guarantor is the obligor on such Indebtedness and the payee is neither the Company nor a Guarantor is not the obligeeGuarantor, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of (i) all Obligations with respect to the NotesSecurities, in the case of the Company, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of (ii) all Guaranteed Obligations with respect to the Subsidiary Guarantee Security Guarantee, in the case of a Guarantor; (B) Indebtedness owed to the Company or any Guarantor must be evidenced by an unsubordinated promissory note, unless the obligor under such Indebtedness is the Company or a Guarantor; and (bC) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Parent Guarantor or a Restricted Subsidiary of the Company thereof and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor Parent Guarantor or a Restricted Subsidiary of the Company thereof, will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) Incurrence of such Indebtedness by the Company Parent Guarantor or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii7) the incurrence Guarantee (A) by the Company or any of the Guarantors of Indebtedness of the Company or a Guarantor or (B) by any Restricted Subsidiary of the Parent Guarantor that is not a Guarantor of Indebtedness of a Restricted Subsidiary of the Parent Guarantor that is not a Guarantor, in each case that was permitted to be Incurred by another provision of this Section 4.3; (8) the Incurrence by the Parent Guarantor or any of its Restricted Subsidiaries of obligations under Hedging Contracts in Obligations that are Incurred for the ordinary course purpose of business fixing, hedging or swapping interest rate, commodity price or foreign currency exchange rate risk (or to reverse or amend any such agreements previously made for such purposes), and not for speculative purposes, and that do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in interest rates, commodity prices or foreign currency exchange rates or by reason of fees, indemnities and compensation payable thereunder; (viii9) the guarantee Incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries Foreign Subsidiary of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided thataggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any such incurrence, the aggregate principal amount of all Indebtedness incurred under Incurred pursuant to this clause (xii9) and then outstanding does outstanding, not to exceed the greater of (A) $25.0 million50.0 million or (B) 40% of the Consolidated Net Assets of any such Foreign Subsidiaries; (xiii10) the incurrence by Incurrence of Other Permitted Debt; (11) Indebtedness of any Person outstanding on the Company date on which such Person becomes a Restricted Subsidiary or is acquired by, or merged or consolidated with or into, the Parent Guarantor or any Restricted Subsidiary, or Indebtedness of its the Parent Guarantor or any Restricted Subsidiaries of Acquired Debt Subsidiary Incurred in connection with a transaction subject to Section 5.1 or in contemplation of, or to provide all or any portion of the funds or credit support utilized to consummate, the acquisition by the Parent Guarantor or such Restricted Subsidiary of any assets (whether through the direct purchase of assets or the purchase of Capital Stock of, or merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(ivwith or into, any Person owning such assets); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that at the time any such Indebtedness is extinguished within five Business Days of incurrence;transaction occurs, either: (xvA) the Parent Guarantor would have been able to Incur $1.00 of additional Indebtedness pursuant to Section 4.3(a) after giving pro forma effect to such transaction and the incurrence of such Indebtedness or pursuant to this clause (11); or (B) the issuance of Disqualified Stock or preferred securities of any Fixed Charge Coverage Ratio of the Company and the Restricted Subsidiaries Parent Guarantor (or its permitted successor) after giving pro forma effect to the extent the net proceeds thereof are concurrently (a) used such transaction is equal to redeem all of the outstanding Notes or (b) deposited higher than such ratio immediately prior to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten;such transaction; or (xvi12) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence Incurrence by the Company or any of its Restricted Subsidiaries Guarantor of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatin an aggregate outstanding principal amount, after giving effect to such Incurrence and together with all Permitted Refinancing Indebtedness Incurred to refund, refinance or replace any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under Incurred pursuant to this clause (xvii12) and then outstanding does outstanding, not to exceed the greater of (aA) $50.0 million or (bB) 5.05% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedParent Guarantor.

Section 4. 09(a11(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below:): (i1) the incurrence Indebtedness incurred by the Company Company, DC or any Guarantor pursuant to the Senior Credit Agreement together with the guarantees thereunder and the issuance and creation of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilitiescredit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof); provided, provided however, that, immediately after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder1) and then outstanding does not exceed CA$635.0 million, less the greater amount of all mandatory principal payments (awith respect to revolving borrowings and letters of credit, only to the extent revolving commitments are correspondingly reduced) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated actually made by any borrower thereunder with Net Tangible Assets as of the date of incurrenceProceeds from Asset Sales; (ii2) the incurrence Indebtedness incurred by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company Company, DC and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees (including any Guarantee thereof) issued on the Issue DateDate or subsequently represented by the Exchange Notes issued in exchange for the Notes and in exchange for any Additional Notes (including any Guarantee thereof); (iv3) the incurrence Existing Indebtedness (other than Indebtedness described in clauses (1) and (2)); (4) Indebtedness, including Capitalized Lease Obligations incurred by the Company Company, DC or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease ObligationsGuarantor to finance the purchase, 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 construction lease or improvement of property, plant property (real or personal) or equipment that is used or useful in a Permitted Business (whether through the business direct purchase of assets or the Company Capital Stock of any Person owning such assets) within 270 days before or after such Restricted Subsidiarypurchase, including lease or improvement in an aggregate principal amount that, when aggregated with the principal amount of all Permitted Refinancing other Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness then outstanding and incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv4) and then outstanding any Indebtedness that refunds or refinances such Indebtedness, does not exceed the greater of (a) $25.0 CA$35.0 million or (b) 2.5and 3.5% of Consolidated Total Assets of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v5) the incurrence or issuance Indebtedness incurred 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations Subsidiary constituting reimbursement obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash letters of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds credit issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including without limitation letters of credit in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance or self-insurance or other Indebtedness with respect to reimbursement-type obligations regarding workers’ compensation claims; provided, however, that upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or incurrence; (6) Indebtedness arising from agreements of the Company or a Restricted Subsidiary providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or a Subsidiary, other than guarantees and obligations of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or a Subsidiary for the purpose of financing such acquisition; provided, however, that (A) such Indebtedness is not reflected on the balance sheet of the Company or any Restricted Subsidiary prepared in accordance with GAAP (contingent obligations referred to in a footnote to financial statements and not otherwise reflected on the balance sheet will not be deemed to be reflected on such balance sheet for purposes of its this clause (A)) and (B) the maximum assumable liability in respect of all such Indebtedness shall at no time exceed the gross proceeds including non-cash proceeds (the fair market value of such non-cash proceeds being measured at the time received and without giving effect to any subsequent changes in value) actually received by the Company and any Restricted Subsidiaries in connection with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed)disposition; (xi7) the issuance by (x) any Indebtedness of the Company’s Company owed to and held by any Restricted Subsidiaries Subsidiary or Indebtedness of a Restricted Subsidiary owed to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) and held by the Company or any of its Restricted Subsidiaries of any Disqualified StockSubsidiary; provided, however, that, in the case of that (x) or (y): (aA) any subsequent issuance or transfer of Equity Interests any Capital Stock or any other event that results in any such Disqualified Stock Restricted Subsidiary ceasing to be a Restricted Subsidiary or preferred securities being held by a Person other than any subsequent transfer of any such Indebtedness (except to the Company or a Restricted Subsidiary of the Company; and (bSubsidiary) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute the incurrence of such Indebtedness by the issuer thereof and (B) if the Company, DC or any Guarantor is the obligor on such Indebtedness, such Indebtedness is expressly subordinated in right of payment to all obligations with respect to the Notes and the Guarantees, as the case may be; (8) shares of Preferred Stock of a Restricted Subsidiary issued to the Company or a Restricted Subsidiary; provided that any subsequent issuance or transfer of any Capital Stock or any other event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any other subsequent transfer of any such shares of Preferred Stock (except to the Company or a Restricted Subsidiary) shall be deemed in each case to be an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or shares of Preferred Stock; (9) Hedging Obligations of the Company, as applicable, DC or any Guarantor (excluding Hedging Obligations entered into for speculative purposes) for the purpose of hedging (A) interest rate risk with respect to any Indebtedness that was not is permitted by the terms of this clause Indenture to be outstanding, (xi)B) exchange rate risk with respect to any currency exchange and (C) risks with respect to the fluctuation in commodity prices; (xii10) the incurrence Obligations in respect of performance and surety bonds and performance and completion guarantees provided by the Company or any of its Restricted Subsidiaries of liability Subsidiary or obligations in respect of letters of credit related thereto, in each case in the Indebtedness ordinary course of any Unrestricted Subsidiary of the Company business or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionconsistent with past practice; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any Restricted Subsidiary or Preferred Stock of any Restricted Subsidiary (other than DC) not otherwise permitted hereunder in an aggregate principal amount or liquidation preference which, when aggregated with the principal amount and liquidation preference of all other Indebtedness and Preferred Stock then outstanding and incurred pursuant to this clause (11), does not at any one time outstanding exceed CA$75.0 million; provided, however, that the sum of (X) the aggregate principal amount of any Indebtedness of any Restricted Subsidiary that is not a Guarantor outstanding and incurred pursuant to this clause (11), and (Y) the aggregate liquidation preference of Preferred Stock of any Restricted Subsidiary that is not a Guarantor outstanding and incurred pursuant to this clause (11), does not at any time outstanding exceed CA$25.0 million; (12) (x) any guarantee by the Company or a Guarantor of Indebtedness of any Restricted Subsidiary so long as the incurrence of such Indebtedness incurred by such Restricted Subsidiary is permitted under the terms of this Indenture; provided that if such Indebtedness is by its express terms subordinated in right of payment to the Notes or the Guarantee of such Restricted Subsidiaries Subsidiary, as applicable, any such guarantee of such Guarantor with respect to such Indebtedness shall be subordinated in right of payment to such Guarantor’s Guarantee with respect to the Notes substantially to the same extent as such Indebtedness is subordinated to the Notes or the Guarantee of such Restricted Subsidiary, as applicable, (y) any guarantee by a Non-Guarantor Restricted Subsidiary of Indebtedness of another Non-Guarantor Subsidiary incurred in accordance with the terms of this Indenture, and (z) any guarantee by a Guarantor of Indebtedness of the Company incurred in accordance with the terms of this Indenture; (13) Indebtedness or Preferred Stock incurred by the Company or any Restricted Subsidiary that serves to refund or refinance any Indebtedness incurred as permitted under Section 4.11(a) and clauses (2), (3) and (4) above, this clause (13) and clauses (14), (17) and (19) below or any Indebtedness issued to so refund or refinance such Indebtedness including additional Indebtedness incurred to pay premiums and fees in connection therewith (the “Refinancing Indebtedness”) prior to its respective maturity; provided, however, that such Refinancing Indebtedness (A) has a Weighted Average Life to Maturity at the time such Refinancing Indebtedness is incurred which is not less than the remaining Weighted Average Life to Maturity of the Indebtedness being refunded or refinanced, (B) to the extent such Refinancing Indebtedness refinances Indebtedness subordinated or pari passu to the Notes or the Guarantees, such Refinancing Indebtedness is subordinated or pari passu to the Notes or the Guarantees at least to the same extent as the Indebtedness being refinanced or refunded, (C) shall not include (x) Indebtedness or Preferred Stock of a Non-Guarantor Subsidiary that refinances Indebtedness or Preferred Stock of the Company or a Guarantor or (y) Indebtedness or Preferred Stock of the Company or a Restricted Subsidiary that refinances Indebtedness or Preferred Stock of an Unrestricted Subsidiary, (D) shall not be in a principal amount in excess of the principal amount of, premium, if any, accrued interest on, and related fees and expenses of, the Indebtedness being refunded or refinanced and (E) shall not have a stated maturity date prior to the Stated Maturity of the Indebtedness being refunded or refinanced; and provided further, that subclauses (A) and (E) of this clause (13) will not apply to any refunding or refinancing of any Senior Debt or Guarantor Senior Debt; (14) Indebtedness or Preferred Stock of Persons that are acquired by the Company or any Restricted Subsidiary or merged into the Company or a Restricted Subsidiary in accordance with the terms of this Indenture; provided that such Indebtedness or Preferred Stock is not incurred in connection with or in contemplation of such acquisition or merger; and provided further, that after giving effect to such incurrence of Indebtedness the Company would be permitted to incur at least CA$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 4.11(a); (15) Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, provided that such Indebtedness is extinguished within five Business Days of its incurrence; (xv16) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any Restricted Subsidiary supported by a letter of its Restricted Subsidiaries credit issued pursuant to the Senior Credit Agreement in a principal amount not in excess of the stated amount of such letter of credit; (17) Indebtedness representing deferred compensation or consisting of promissory notes issued by the Company, DC or any Guarantor to current or former officers, directors and employees, their respective estates, spouses or former spouses to finance the purchase or redemption of Equity Interests of any direct or indirect parent of the Company permitted by Section 4.12. (18) Contribution Indebtedness; (19) Indebtedness of up to CA$10.0 million in respect of sale and leaseback transactions permitted by the covenant described under Section 4.14; and (20) Indebtedness consisting of (x) the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (by) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence take or issuance. For purposes of determining compliance with this Section 4.09pay obligations contained in supply arrangements, in each case, in the event that an item ordinary course of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedbusiness.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or issuances of Disqualified Stock or preferred securities Preferred Stock, as applicable (collectively, “Permitted Debt”) described below:): (i1) the incurrence by the Company or Issuer and any of its Restricted Subsidiaries of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the Facilities in an aggregate principal amount of all Indebtedness incurred at any one time outstanding under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company Issuer and its Restricted Subsidiaries thereunder) and then outstanding does not to exceed the greater greatest of (ai) $1.7 billion or 1.1 billion, (bii) the Borrowing Base in effect at the time of incurrence and (iii) $750.0 950.0 million plus 20.035.0% of the CompanyIssuer’s Consolidated Net Tangible Assets as of Modified ACNTA determined on the date of such incurrence; (ii2) the incurrence by the Company or Issuer and its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company Issuer and the Guarantors of Indebtedness represented by (a) the Initial Notes and the related Subsidiary Note Guarantees to be issued on the Issue DateDate and (b) Additional Notes and related Note Guarantees or other Parity Lien Debt, if the Proved Reserves Coverage Ratio would have been at least 1.25 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom); (iv4) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company Issuer or such any of its Restricted SubsidiarySubsidiaries, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to extendrenew, refund, refinance, renew, replace, defease or refund discharge any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect not to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrenceat any time outstanding; (v5) the incurrence or issuance by the Company Issuer or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used toto renew, extendrefund, refinance, renew, replace, defease or refund discharge any Indebtedness or Disqualified Stock (other than intercompany Indebtedness) that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii2), (iii3), (xiii5) or (xvi15) of this Section 4.09(b) or this clause (v); (vi6) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company Issuer and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company Issuer or any Guarantor is the obligor on such Indebtedness and a Guarantor the payee is not the obligeeIssuer 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 Issuer, or if the Note Guarantee, in the case of a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company Issuer or a Restricted Subsidiary of the Company Issuer and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither not either the Company nor Issuer or a Restricted Subsidiary of the Company Issuer, will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company Issuer or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi7) the issuance by (x) any of the CompanyIssuer’s Restricted Subsidiaries to the Company Issuer or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Preferred Stock; provided, however, that, in the case of (x) or (y):: (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Preferred Stock or preferred securities being held by a Person other than the Company Issuer or a Restricted Subsidiary of the CompanyIssuer; and (b) any sale or other transfer of any such Disqualified Preferred Stock or preferred securities to a Person that is not either the Company Issuer or a Restricted Subsidiary of the Company shall Issuer, will be deemed, in each case, to constitute an issuance of such Disqualified Preferred Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi7); (xii8) the incurrence by the Issuer or any of its Restricted Subsidiaries of Hedging Obligations and Bank Product Obligations, in each case, in the ordinary course of business and not for speculative purposes; (9) the Guarantee by the Issuer or any of the Guarantors of Indebtedness of the Issuer or a Restricted Subsidiary of the Issuer to the extent that the guaranteed Indebtedness was permitted to be incurred by another provision of this Section 4.09; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee must be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed; (10) the incurrence by the Company Issuer or any of the Guarantors of Indebtedness in respect of self-insurance obligations or bid, plugging and abandonment, appeal, reimbursement, performance, surety and similar bonds and completion guarantees provided by the Issuer or a Restricted Subsidiary in the ordinary course of business and any Guarantees or letters of credit functioning as or supporting any of the foregoing bonds or obligations and workers’ compensation claims in the ordinary course of business; (11) the incurrence by the Issuer or any of the Guarantors 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 five Business Days; (12) the incurrence by the Issuer or any of its Restricted Subsidiaries of in-kind obligations relating to net oil or natural gas balancing positions arising in the ordinary course of business; (13) any obligation arising from agreements of the Issuer or any Restricted Subsidiary of the Issuer providing for indemnification, adjustment of purchase price, earn outs, or similar obligations, in each case, incurred or assumed in connection with the disposition or acquisition of any business, assets or Capital Stock of a Restricted Subsidiary in a transaction permitted by this Indenture, provided that such obligation is not reflected on the face of the balance sheet of the Issuer or any Restricted Subsidiary; (14) the incurrence by the Issuer or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company Issuer or any Joint Venture but only to the extent that such liability is the result of the CompanyIssuer’s or any such Restricted Subsidiary’s being a general partner or member of, or owner of an Equity Interest in, such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and Indebtedness, provided that, that after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii14) and then outstanding does not exceed $25.0 million; (xiii15) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv)Permitted Acquisition Indebtedness; (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii16) the incurrence by the Company Issuer or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or Issuer of any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the Stock in an aggregate principal amount of (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred and to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred or Disqualified Stock issued under pursuant to this clause (xvii) and then outstanding does 16), not to exceed the greater of (ai) $50.0 million or and (bii) 5.0% of the CompanyIssuer’s Consolidated Net Tangible Assets as of Modified ACNTA determined on the date of such incurrence or issuance; and (17) (a) Indebtedness incurred by a Receivables Subsidiary in a Receivables Facility that is without recourse to the Issuer or any Restricted Subsidiary other than the Receivables Subsidiary (except for Securitization Undertakings) and (b) to the extent constituting Indebtedness, obligations of the Issuer or a Restricted Subsidiary as seller or servicer under a Receivables Facility and any guarantee by the Issuer of such Indebtedness. The Issuer will not incur, and will not permit any Guarantor to incur, any Indebtedness (including Permitted Debt) that is contractually subordinated in right of payment to any other Indebtedness of the Issuer or such Guarantor unless such Indebtedness is also contractually subordinated in right of payment to the Notes or the applicable Note Guarantee on substantially identical terms; provided, however, that no Indebtedness will be deemed to be contractually subordinated in right of payment to any other Indebtedness of the Issuer or any Guarantor solely by virtue of being unsecured or by virtue of being secured on a junior priority basis. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i1) through (xvii17) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company Issuer will be permitted to divide, classify (or later classify or and reclassify in whole or in part in its sole discretion) such item of Indebtedness on the date of its incurrence, or Disqualified Stock later redivide or preferred securities reclassify all or a portion of such item of Indebtedness, in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities outstanding on the Issue Date shall date on which Notes are first issued and authenticated under this Indenture will initially be considered deemed to have been incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraphon such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt and in all such cases may not be reclassified. The accrual of interestinterest or Preferred Stock dividends, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, the payment of interest on any Indebtedness not secured by a Lien in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Preferred Stock or Disqualified Stock or preferred securities in the form of additional shares securities of the same class of Preferred Stock or Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Preferred Stock or Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, ; provided that the amount thereof is included in Fixed Charges of the Company Issuer as accrued to the extent required by the definition of such term. The amount of any Indebtedness outstanding as of any date will be: (adjusted1) the accreted value of the Indebtedness, in the case of dividends, by any Indebtedness issued with original issue discount; (2) the fraction specified in clause (4)(b) principal amount of the definition Indebtedness, in the case of “Fixed Charges”). For purposes of this Section 4.09, any other Indebtedness; and (i3) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with of another Person secured by a Lien on the issuance assets of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Furtherspecified Person, the accounting reclassification lesser of: (a) the Fair Market Value of any obligation or Disqualified Stock or preferred securities such assets at the date of determination; and (b) the amount of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedPerson.

Section 4. 09(a10(a) will shall not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, ““ Permitted DebtDebt ”) described below:): (ia) the incurrence by the Company or any Guarantor of its Restricted Subsidiaries of additional Indebtedness (including and letters of credit) credit under one or more Credit Facilities, provided that, after giving effect to Facilities in an aggregate amount at any such incurrence, the aggregate principal amount of all Indebtedness incurred time outstanding under this clause (i1) not to exceed $475.0 million, less the amount of Non-Recourse Debt outstanding under clause (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder16) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrencebelow; (iib) the incurrence by the Company or and its Restricted Subsidiaries of the Existing Indebtedness; (iiic) the incurrence by of the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date, the Note Guarantees and the Exchange Securities to be issued pursuant to the Registration Rights Agreement; (ivd) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction design, construction, installation or improvement of property, plant or equipment used in the business of the Company or such any of its Restricted Subsidiary, including all Subsidiaries and Permitted Refinancing Indebtedness incurred in respect thereof, in an aggregate amount not to extend, refinance, renew, replace, defease or refund exceed at any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then time outstanding does not exceed the greater of (aA) $25.0 20.0 million or and (bB) 2.53.0% of the Company’s Consolidated Net Total Tangible Assets as of the date of incurrenceAssets; (ve) Indebtedness of the Company or any of its Restricted Subsidiaries incurred to finance the replacement (through construction, acquisition, lease or otherwise) of one or more Vessels and any assets that shall become Related Assets, upon a total loss, destruction, condemnation, confiscation, requisition, seizure, forfeiture or other taking of title to or use of such Vessel (collectively, a “Total Loss”) in an aggregate amount no greater than the ready for sea cost (as determined in good faith by the Company) for such replacement Vessel, in each case, less all compensation, damages and other payments (including insurance proceeds other than in respect of business interruption insurance) actually received by the Company or any of its Restricted Subsidiaries from any Person in connection with the Total Loss in excess of amounts actually used to repay Indebtedness secured by the Vessel subject to the Total Loss; (f) Indebtedness of the Company or any Restricted Subsidiary incurred in relation to: (i) maintenance, repairs, refurbishments and replacements required to maintain the classification of any of the Vessels owned, leased, time chartered or bareboat chartered to or by the Company or any Restricted Subsidiary; (ii) drydocking of any of the Vessels owned or leased by the Company or any Restricted Subsidiary for maintenance, repair, refurbishment or replacement purposes in the ordinary course of business; and (iii) any expenditures which will or may be reasonably expected to be recoverable from insurance on such Vessels; (g) the incurrence or issuance by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds respect of which are used to, extend, refinance, renew, replace, defease or refund Indebtedness or Disqualified Stock that was (other than intercompany Indebtedness) permitted by this Indenture to be incurred under Section 4.09(a4.10(a) or clause (iiSections 4.10(b)(2), (iiib)(3), (xiiib)(5), (b)(6), (b)(7) or (xvi) of this Section 4.09(b) or this clause (vb)(14); (vih) the incurrence of Indebtedness by the Company owed to a Restricted Subsidiary and Indebtedness by any Restricted Subsidiary owed to the Company or any of its other Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted SubsidiariesSubsidiary; provided, however, that: (a) if the Company is the obligor on that upon any such Indebtedness and Restricted Subsidiary ceasing to be a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, Restricted Subsidiary or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a owed to any Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemedSubsidiary, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may beapplicable, that was shall be deemed to have incurred Indebtedness not permitted by this clause (vi)8); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xii) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any shares of Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stockstock; provided, however, that, in the case of (x) or (y):: (ai) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (bii) any sale or other transfer of any such Disqualified Stock or preferred securities stock to a Person that is not either neither the Company or nor a Restricted Subsidiary of the Company Company; (iii) shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities stock by such Restricted Subsidiary or the Company, as applicable, that was is not permitted by this clause (xi9); (xiij) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect Permitted Hedging Obligations; (k) the guarantee by the Company or any Guarantor of Indebtedness of the Indebtedness of any Unrestricted Company or a Restricted Subsidiary of the Company or any Joint Venture but only that was permitted to be incurred by another provision of this Section 4.10; provided that if the Indebtedness being guaranteed is contractually subordinated to the Notes or a Guarantee, then the guarantee shall be contractually subordinated to the same extent that such liability is as the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 millionguaranteed; (xiiil) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt Indebtedness in connection with a merger respect of workers’ compensation claims, unemployment insurance, health, disability and other employee benefits or consolidation satisfying either one property, casualty or liability insurance, self-insurance obligations, bankers’ acceptances, or performance, completion, bid, appeal and surety bonds, in each case, in the ordinary course of the financial tests set forth in Section 5.01(a)(iv)business; (xivm) the incurrence of Indebtedness of 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 (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; providedfunds, however, that so long as such Indebtedness is extinguished covered within five Business Days of incurrenceDays; (xvn) the incurrence of Indebtedness or the issuance of Indebtedness, Disqualified Stock or preferred securities stock of any of (x) the Company or a Restricted Subsidiary incurred or issued to finance an acquisition or (y) a Person acquired by the Company or a Restricted Subsidiary or merged, consolidated, amalgamated or liquidated with or into a Restricted Subsidiary or the Company; provided , however , that after giving effect to such incurrence or issuance (and the Restricted Subsidiaries related acquisition, merger, consolidation, amalgamation or liquidation), the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued, as the case may be, would have been at least 1.75 to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten1.0; (xvio) the incurrence of Indebtedness of by the Company or any of its Restricted Subsidiaries of Indebtedness consisting of the financing guarantees, earn-outs, indemnities or obligations in respect of insurance premiums purchase price adjustments in customary amounts consistent connection with the operations and business disposition or acquisition of assets, including, without limitation, shares of Capital Stock; (p) Non-Recourse Debt incurred by a Securitiztion Subsidiary in a Qualified Securitization Transaction; (q) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit so long each such obligation is satisfied within 30 days of the Company and the Restricted Subsidiariesincurrence thereof; and (xviir) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided thatIndebtedness, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (stock in an aggregate amount at any time outstanding, including Acquired Debt) meets the criteria of more than one of the categories of all Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be Refinancing Indebtedness incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii18), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be includedexceed $25.0 million.

Section 4. 09(a) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i1) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 1.8 billion or and (b) the sum of $750.0 million plus 20.01.115 billion and 30.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (ii2) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii3) the incurrence by the Company Issuers and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue DateDate (other than any Additional Notes); (iv4) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv4), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv4) and then outstanding does not exceed the greater of (a) $25.0 60.0 million or and (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v5) the incurrence or issuance 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 or refund refund, Indebtedness (other than intercompany Indebtedness) or Disqualified Stock of the Company or any Restricted Subsidiary that was permitted by this Indenture to be incurred under Section 4.09(a) or clause clauses (ii2), (iii), (xiii3) or (xvi11) of this Section 4.09(b) or this clause (v5) of this Section 4.09(b); (vi6) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, that: (a) if the Company is the obligor on such Indebtedness and a Guarantor is not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Guarantor is the obligor on such Indebtedness and neither the Company nor another Guarantor is the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Subsidiary Guarantee of such Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company and (ii) any sale or other transfer of any such Indebtedness to a Person that is neither the Company nor a Restricted Subsidiary of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi6); (vii7) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) 8) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; provided that in the event such Indebtedness being guaranteed is subordinated in right of payment to the Notes or the Subsidiary Guarantees, then the guarantee shall be subordinated in right of payment to the Notes or the Subsidiary Guarantees, as the case may be; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x9) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi10) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stocksecurities; provided, however, that, in the case of (x) or (y):: (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company Company, shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary or the Company, as applicable, that was not permitted by this clause (xi10); (xii) the incurrence by the Company or any of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii11) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv12) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv13) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi14) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii15) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii15) and then outstanding does not exceed the greater of (a) $50.0 115.0 million or and (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed Charges”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.

Section 4. 09(a2 (When a Subsidiary Guarantor May Merge or Otherwise Dispose of Assets) will not prohibit the incurrence or issuance of any of the following items of Indebtedness or Disqualified Stock or preferred securities (collectively, “Permitted Debt”) described below: (i) the incurrence by the Company or any of Indenture is amended and restated in its Restricted Subsidiaries of additional Indebtedness (including letters of credit) under one or more Credit Facilities, provided that, after giving effect entirety to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Subsidiaries thereunder) and then outstanding does not exceed the greater of (a) $1.7 billion or (b) $750.0 million plus 20.0% of the Company’s Consolidated Net Tangible Assets read as of the date of incurrence; (ii) the incurrence by the Company or its Restricted Subsidiaries of the Existing Indebtedness; (iii) the incurrence by the Company and the Guarantors of Indebtedness represented by the Initial Notes and the related Subsidiary Guarantees issued on the Issue Date; (iv) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of the Company or such Restricted Subsidiary, including all Permitted Refinancing Indebtedness incurred to extend, refinance, renew, replace, defease or refund any Indebtedness incurred pursuant to this clause (iv), provided that after giving effect to any such incurrence, the principal amount of all Indebtedness incurred pursuant to this clause (iv) and then outstanding does not exceed the greater of (a) $25.0 million or (b) 2.5% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence; (v) the incurrence or issuance 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 or refund Indebtedness or Disqualified Stock that was permitted by this Indenture to be incurred under Section 4.09(a) or clause (ii), (iii), (xiii) or (xvi) of this Section 4.09(b) or this clause (v); (vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness between or among the Company and any of its Restricted Subsidiaries; provided, however, thatfollows: (a) if the The Company is the obligor on such Indebtedness and a shall not permit any Subsidiary Guarantor is to consolidate with or merge with or into (whether or not the obligee, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, or if a Subsidiary Guarantor is the obligor on such Indebtedness surviving corporation), or sell, assign, convey, transfer, lease, convey or otherwise dispose of all or substantially all of its properties and neither assets, in one or more related transactions, to any Person (other than to the Company nor or another Guarantor is Subsidiary Guarantor), unless, if such entity remains a Subsidiary Guarantor, (A) the obligeeresulting, surviving or transferee Person (the “Successor Guarantor”) shall be a corporation, partnership, trust or limited liability company organized and existing under the laws of the United States of America, any State of the United States, the District of Columbia or any other territory thereof; (B) the Successor Guarantor, if other than such Indebtedness must be Subsidiary Guarantor, expressly subordinated assumes in writing by supplemental indenture (and other applicable documents), executed and delivered to the prior payment Trustee, in full in cash of all Obligations with respect form satisfactory to the Subsidiary Guarantee Trustee, all the obligations of such GuarantorSubsidiary Guarantor under the Subsidiary Guarantee, this Indenture and the Registration Rights Agreement (C) immediately after giving effect to such transaction, no Default of Event of Default shall have occurred and be continuing; andand (D) the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with this Indenture. (b) Upon satisfaction of the conditions set forth in Section 4.2(a), the applicable Subsidiary Guarantor shall be released from its obligations under this Indenture and the Successor Guarantor shall succeed to, and be substituted for, and may exercise every right and power of, a Subsidiary Guarantor under this Indenture, but, in the case of a lease of all or substantially all its assets, a Subsidiary Guarantor shall not be released from its obligations under its Subsidiary Guarantee. (c) Notwithstanding the foregoing, any Subsidiary Guarantor may (i) any subsequent issuance merge with or into or transfer all or part of Equity Interests that results in any such Indebtedness being held by a Person other than its properties and assets to another Subsidiary Guarantor or the Company or (ii) merge with a Restricted Subsidiary of the Company and (ii) any sale or other transfer solely for the purpose of any such Indebtedness to reincorporating the Subsidiary Guarantor in a Person that is neither the Company nor a Restricted Subsidiary State of the Company will be deemed, in each case, to constitute an incurrence (as of the date of such issuance or transfer) of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi); (vii) the incurrence by the Company or any of its Restricted Subsidiaries of obligations under Hedging Contracts in the ordinary course of business and not for speculative purposes; (viii) the guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or any of its Restricted Subsidiaries that was permitted to be incurred by another provision of this Section 4.09; (ix) the incurrence by the Company or any of its Restricted Subsidiaries of obligations relating to net Hydrocarbon balancing positions arising in the ordinary course of business and consistent with past practice; (x) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness in respect of self-insurance, bid, performance, surety and similar bonds issued for the account of the Company and any of its Restricted Subsidiaries in the ordinary course of business, including guarantees and obligations of the Company or any of its Restricted Subsidiaries with respect to letters of credit supporting such obligations (in each case other than an obligation for money borrowed); (xi) the issuance by (x) any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of any Disqualified Stock or preferred securities or (y) the Company or any of its Restricted Subsidiaries of any Disqualified Stock; provided, however, that, in the case of (x) or (y): (a) any subsequent issuance or transfer of Equity Interests that results in any such Disqualified Stock or preferred securities being held by a Person other than the Company or a Restricted Subsidiary of the Company; and (b) any sale or other transfer of any such Disqualified Stock or preferred securities to a Person that is not either the Company or a Restricted Subsidiary of the Company shall be deemed, in each case, to constitute an issuance of such Disqualified Stock or preferred securities by such Restricted Subsidiary United States or the Company, as applicable, that was not permitted by this clause (xi); (xii) the incurrence by the Company or any District of its Restricted Subsidiaries of liability in respect of the Indebtedness of any Unrestricted Subsidiary of the Company or any Joint Venture but only to the extent that such liability is the result of the Company’s or any such Restricted Subsidiary’s being a general partner of such Unrestricted Subsidiary or Joint Venture and not as guarantor of such Indebtedness and provided that, after giving effect to any such incurrence, the aggregate principal amount of all Indebtedness incurred under this clause (xii) and then outstanding does not exceed $25.0 million; (xiii) the incurrence by the Company or any of its Restricted Subsidiaries of Acquired Debt in connection with a merger or consolidation satisfying either one of the financial tests set forth in Section 5.01(a)(iv); (xiv) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence; (xv) the incurrence of Indebtedness or the issuance of Disqualified Stock or preferred securities of any of the Company and the Restricted Subsidiaries to the extent the net proceeds thereof are concurrently (a) used to redeem all of the outstanding Notes or (b) deposited to effect Covenant Defeasance or Legal Defeasance or satisfy and discharge this Indenture as described in Article Seven and Article Ten; (xvi) the incurrence of Indebtedness of the Company or any of its Restricted Subsidiaries consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and the Restricted Subsidiaries; and (xvii) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness or the issuance by the Company or any of its Restricted Subsidiaries of Disqualified Stock; provided that, after giving effect to any such incurrence or issuance, the aggregate principal amount of all Indebtedness incurred and Disqualified Stock issued under this clause (xvii) and then outstanding does not exceed the greater of (a) $50.0 million or (b) 5.0% of the Company’s Consolidated Net Tangible Assets as of the date of incurrence or issuance. For purposes of determining compliance with this Section 4.09, in the event that an item of Indebtedness or Disqualified Stock or preferred securities (including Acquired Debt) meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvii) above, or is entitled to be incurred pursuant to Section 4.09(a), the Company will be permitted to classify (or later classify or reclassify in whole or in part in its sole discretion) such item of Indebtedness or Disqualified Stock or preferred securities in any manner (including by dividing and classifying such item of Indebtedness or Disqualified Stock or preferred securities in more than one type of Indebtedness or Disqualified Stock or preferred securities permitted under such covenant) that complies with this Section 4.09. The dollar equivalent principal amount of any Indebtedness denominated in a foreign currency and incurred pursuant to any dollar-denominated restriction on the incurrence of Indebtedness shall be calculated based on the relevant exchange rates in effect at the time of incurrence. Any Indebtedness under Credit Facilities on the Issue Date shall be considered incurred under Section 4.09(a), subject to any subsequent classification or reclassification permitted pursuant to this paragraph. The accrual of interest, the accretion or amortization of original issue discount, the accretion of principal with respect to a non-interest bearing or other discount security, 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 or preferred securities in the form of additional shares of the same class of Disqualified Stock or preferred securities will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09, provided, in each such case, that the amount thereof is included in Fixed Charges of the Company as accrued (adjusted, in the case of dividends, by the fraction specified in clause (4)(b) of the definition of “Fixed ChargesColumbia.”). For purposes of this Section 4.09, (i) the accrual of an obligation to pay a premium in respect of Indebtedness or Disqualified Stock or preferred securities arising in connection with the issuance of a notice of redemption or making of a mandatory offer to purchase such Indebtedness or Disqualified Stock or preferred securities and (ii) unrealized losses or charges in respect of Hedging Contracts (including those resulting from the application of SFAS 133) will, in case of clause (i) or (ii), not be deemed to be an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities. Further, the accounting reclassification of any obligation or Disqualified Stock or preferred securities of the Company or any of its Restricted Subsidiaries as Indebtedness or Disqualified Stock or preferred securities will not be deemed an incurrence of Indebtedness or issuance of Disqualified Stock or preferred securities for purposes of this Section 4.09. For purposes of determining any particular amount of Indebtedness under this Section 4.09, (i) guarantees of, or obligations in respect of letters of credit relating to, Indebtedness otherwise included in the determination of such amount shall not also be included and (ii) if obligations in respect of letters of credit are incurred pursuant to a Credit Facility and are being treated as incurred pursuant to clause (i) of the definition of “Permitted Debt” and the letters of credit relate to other Indebtedness, then such other Indebtedness shall not be included.