THIRD SUPPLEMENTAL INDENTURE
Exhibit 4.34
Third Supplemental Indenture (this “Third Supplemental Indenture”), dated as of April 26, 2010, among Xxxxxx (U.S.) Acquisitionco Corp., a Delaware corporation (the “Guaranteeing Subsidiary”), a subsidiary of Xxxxxx Energy ULC, an Alberta unlimited liability corporation (the “Company”), the Company, GEP Midstream Finance Corp., an Alberta corporation (the “Finance Corp.”), the Guarantors (as defined in the Indenture referred to herein), BNY Trust Company of Canada, as collateral agent under the Indenture referred to below and the Collateral Documents, and The Bank of New York Mellon, as trustee under the Indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company, Finance Corp. and the Guarantors have heretofore executed and delivered to the Trustee and the Collateral Agent an indenture (the “Indenture”), dated as of May 27, 2009, providing for the issuance of 11.75% First Lien Senior Secured Notes due 2014 (the “Notes”), as supplemented;
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth therein (the “Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Collateral Agent are authorized to execute and deliver this Third Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiary, the Company, Finance Corp., the Guarantors, the Collateral Agent and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT OF U.S. SUBSIDIARIES TO GUARANTEE. The Guaranteeing Subsidiary, if it is a U.S. Subsidiary, hereby agrees to and does hereby provide an unconditional guarantee on the terms and subject to the conditions set forth in the Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No director, officer, employee, incorporator or stockholder of the Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company, Finance Corp., the Guarantors or any Guaranteeing Subsidiary under the Notes, the Guarantee, the Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, or this Third Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS THIRD SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE AND THE COLLATERAL AGENT. Neither the Trustee nor the Collateral Agent shall be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Third Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Subsidiary, the Company, Finance Corp. and the Guarantors.
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed and attested, all as of the date first above written.
Dated: April 26, 2010
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XXXXXX (U.S.) ACQUISITIONCO CORP. |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Secretary and Treasurer |
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XXXXXX ENERGY ULC |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Executive Vice President, Finance and Chief Financial Officer |
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GEP MIDSTREAM FINANCE CORP. |
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By: |
/s/ Xxxxxxx X. Xxxxxx |
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Name: Xxxxxxx X. Xxxxxx |
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Title: Executive Vice President, Finance and Chief Financial Officer |
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GUARANTORS: |
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XXXXXX ENERGY (U.S.) INC. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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LINK PETROLEUM, INC. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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XXXXXX ENERGY HOLDING ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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MOOSE JAW REFINERY PARTNERSHIP |
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by its managing partner, |
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Xxxxxx Energy ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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MOOSE JAW REFINERY ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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CANWEST PROPANE PARTNERSHIP |
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by its managing partner, |
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Xxxxxx Energy ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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CANWEST PROPANE ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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MP ENERGY PARTNERSHIP |
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by its managing partner, |
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Xxxxxx Energy ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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MP ENERGY ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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XXXXXX ENERGY PARTNERSHIP |
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by its managing partner, |
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Xxxxxx Energy ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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GEP ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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LINK PETROLEUM SERVICES LTD. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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CHIEF HAULING CONTRACTORS ULC |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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XXXXXX GCC INC. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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BATTLE RIVER TERMINAL LP |
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by its general partner, |
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Battle River Terminal GP Inc. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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BATTLE RIVER TERMINAL GP INC. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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BRIDGE CREEK TRUCKING LTD. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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XXXXXXXXX TANK TRUCKING LTD. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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AARCAM PROPANE & CONSTRUCTION HEAT LTD. |
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By: |
/s/ X. Xxxxxx Xxxxx |
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Authorized Signing Officer |
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THE BANK OF NEW YORK MELLON, |
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as Trustee |
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By: |
/s/ Xxxx Xxx |
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Name: Xxxx Xxx |
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Title: Senior Associate |
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BNY TRUST COMPANY OF CANADA, |
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as Collateral Agent |
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By: |
/s/ Xxxxxx Xxx |
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Name: Xxxxxx Xxx |
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Title: Authorized Signatory |
