INDENTURE

Exhibit 4.1

EXECUTION COPY

 

MARITIMES & NORTHEAST PIPELINE, L.L.C.

AND

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Trustee

 

INDENTURE

Dated as of May 14, 2009

 

Senior Notes

 

TABLE OF CONTENTS

 

 

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THIS INDENTURE, dated as of the 14th day of May, 2009, is between MARITIMES & NORTHEAST PIPELINE, L.L.C., a limited liability company duly organized and existing under the laws of the State of Delaware (hereinafter sometimes referred to as the “ Issuer ”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee (hereinafter sometimes referred to as the “ Trustee ”).

WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance of notes and other evidences of senior Indebtedness (hereinafter referred to as the “ Notes ”), in an unlimited aggregate principal amount to be issued from time to time in one or more series as in this Indenture provided as registered Notes without coupons, to be authenticated by the certificate of the Trustee and to provide the terms and conditions upon which the Notes are to be authenticated, issued and delivered;

WHEREAS, the Notes and the certificate of authentication to be borne by the Notes (the “ Certificate of Authentication ”) are to be substantially in such forms as may be approved by the Management Committee (as defined below) or set forth in any indenture supplemental to this Indenture, if they are not substantially in the form set forth in Exhibit A hereto; and

WHEREAS, all things necessary to make this Indenture the valid, binding and legal obligation of the Issuer, and to constitute these presents a valid indenture and agreement according to its terms, have been done and performed or will be done and performed prior to the initial issuance of the Notes, and the execution of this Indenture and the issuance hereunder of the Notes of any series have been or will be prior to issuance of the Notes of such series in all respects duly authorized, and the Issuer, in the exercise of the legal right and power in it vested, executes this Indenture and proposes to make, execute, issue and deliver the Notes in one or more series, as provided herein;

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

That in consideration of the premises and the purchase and acceptance of the Notes by the holders thereof, the Issuer covenants and agrees with the Trustee, for the equal and proportionate benefit (subject to the provisions of this Indenture) of the respective holders from time to time of the Notes or of a series thereof, without any discrimination, preference or priority of any one Note over any other by reason of priority in the time of issue, sale or negotiation thereof, or otherwise, as follows:

ARTICLE ONE

Definitions

SECTION 1.01. Certain Terms Defined.

The terms defined in this Section (except as in this Indenture otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture, any Management Committee Resolution given or made pursuant to or otherwise in connection with this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture which are defined in the Trust

Indenture Act, or which are by reference in the Trust Indenture Act defined in the Securities Act (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings assigned to such terms in the Trust Indenture Act or in the Securities Act as in force on the date of execution of this Indenture.

“ Accredited Investor Global Notes ” has the meaning set forth in Section 2.04(d).

“ Affiliate ” means with respect to any Person: (a) each Person that such Person Controls; (b) each Person that Controls such Person; and (c) each Person that is under common Control with such Person.

“ Agent Members ” has the meaning set forth in Section 2.04(e)(i).

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

“ Attributable Indebtedness ,” when used with respect to any sale-leaseback transaction, means, as at the time of determination, the present value, discounted at the rate set forth or implicit in the terms of the lease included in such transaction, of the total obligations of the lessee for rental payments (other than amounts required to be paid on account of taxes, maintenance, repairs, insurance, assessments, utilities, operating and labor costs and other items that do not constitute payments for property rights) during the remaining term of the lease included in such sale-leaseback transaction, including any period for which such lease has been extended. In the case of any lease that is terminable by the lessee upon the payment of a penalty or other termination payment, such amount shall be the lesser of the amount determined assuming termination upon the first date such lease may be terminated, in which case the amount shall also include the amount of the penalty or termination payment, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated, or the amount determined assuming no such termination.

“ Authenticating Agent ” means an authenticating agent with respect to all or any series of the Notes, as the case may be, appointed with respect to all or any series of the Notes, as the case may be, by the Trustee pursuant to Section 2.11.

“ Authorized Person ” means an officer of the Issuer or its managing member, or other Person acting on behalf of the Issuer or its managing member, duly authorized to take such action or perform such function (including, delivery of any Officer’s Certificate) by a Management Committee Resolution.

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

“ Business Day ” means, with respect to any series of Notes, any day other than a Saturday, Sunday, a legal holiday or a day on which banking institutions in either the City and State of New York, or the state in which the Corporate Trust Office is located, are authorized or obligated to close.

 

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“ Capital Stock ” means, with respect to any Person, any and all outstanding shares or other equivalents (however designated, whether voting or non-voting) of, or interests or participations in (however designated), the equity of such Person including, without limitation, all Common Stock and Preferred Stock, limited liability company membership interests, and partnership and joint venture interests of such Person.

“ Capitalized Lease Obligations ” means, for any Person, all obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) Property to the extent such obligations are required at such time to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP, and, for purposes herein, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

“ Clearstream ” means Clearstream Banking, S.A.

“ Commission ” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, the body (if any) performing such duties at such time.

“ Commodity Exchange Agreement ” means (a) any swap, forward, cap, floor, collar or other similar transaction relating to the price of any category of Hydrocarbons or any index calculated based on the price of one or more categories of Hydrocarbons, (b) any option with respect to any of the foregoing transactions and (c) any combination of any of the foregoing transactions.

“ Common Stock ” means, with respect to any Person, Capital Stock of such Person that does not rank prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of any other class of Capital Stock of such Person.

“ Consolidated Net Tangible Assets ” means, at any date of determination, the total amount of assets after deducting therefrom all current liabilities, excluding (a) any current liabilities that by their terms are extendable or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed, (b) current maturities of long-term debt and (c) the value, net of any applicable reserves, of all goodwill, trade names, trademarks, patents and other like intangible assets, all as set forth, or on a pro forma basis would be set forth, on the Issuer’s consolidated balance sheet for its most recently completed fiscal quarter, prepared in accordance with GAAP.

“ Control ” means possession, directly or indirectly, through one or more intermediaries, of the following:

(a) (i) in the case of a corporation, more than 50% of the outstanding Voting Stock thereof; (ii) in the case of a limited liability company, partnership, limited partnership or venture, the right to more than 50% of the distributions therefrom

 

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(including liquidating distributions); (iii) in the case of a trust or estate, including a business trust, more than 50% of the beneficial interest therein; and (iv) in the case of any other entity, more than 50% of the economic or beneficial interest therein; and

(b) in the case of any entity, the power or authority, through ownership of the Voting Stock, by contract or otherwise, to exercise control over the management of the entity.

“ Corporate Trust Office ” means the office of the Trustee at which, at any particular time its corporate trust business in relation to this Indenture shall be principally administered, which office at the date of the execution of this Indenture is located at 60 Wall Street, 27 ^th Floor, Mail Stop NYC60-2710, New York, New York 10005.

“ Debt Service Coverage Ratio ” means, for any period, the ratio of (a) Operating Cash Flow for such period to (b) Mandatory Senior Debt Service for such period.

“ Default ” means any event, act or condition that with notice or lapse of time, or both, would constitute an Event of Default.

“ Defaulted Payment ” has the meaning set forth in Section 2.03.

“ Depositary ” means, with respect to Notes of any series for which the Issuer shall determine that such Notes will be issued as a Global Note, The Depository Trust Company, New York, New York, another clearing agency or any successor registered as a clearing agency under the Exchange Act or other applicable statute or regulation, which, in each case, shall be designated by the Issuer pursuant to either Section 2.01 or 2.05.

“ Dollars ” or “ $ ”means any lawful coin or currency of the United States of America which at the time of any payment or transfer is legal tender for the payment of all public and private debts.

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

“ Event of Default ” means, with respect to Notes of a particular series, any event specified in Section 6.01 (except as otherwise provided in relation to such series pursuant to Section 2.01 hereof), continued for the period of time, if any, therein designated.

“ Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

“ FERC ” means the Federal Energy Regulatory Commission.

“ Final Maturity Date ” means, with respect to Notes of a particular series as of any date of determination, the latest Stated Maturity of any Note of such series then Outstanding.

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

 

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“ Global Note ” has the meaning set forth in Section 2.04(e)(i).

“ Global Note Legend ” has the meaning set forth in Section 2.04(e)(i).

“ Governmental Obligations ” means direct obligations of the United States government for the payment of which its full faith and credit is pledged, or obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States government and the payment of which is unconditionally guaranteed by the United States government, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of a holder of a depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.

“ Guaranty ” means a guarantee, an endorsement, a contingent agreement to purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become contingently liable under or with respect to any Indebtedness, net worth, working capital or earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the stock or equity interests of any Person, or an agreement to purchase, sell or lease (as lessee or lessor) Property, products, materials, supplies or services primarily for the purpose of enabling a debtor to make payment of such debtor’s obligations or an agreement to assure a creditor against loss, and including, without limitation, causing a bank or other financial institution to issue a letter of credit or other similar instrument for the benefit of another Person (other than letters of credit entered into in the ordinary course of business to the extent such letters of credit are not drawn upon, or if drawn upon, not included to the extent such drawings are reimbursed not later than the third Business Day), but excluding endorsements for collection or deposit in the ordinary course of business. The terms “ Guarantee ” and “ Guaranteed ” used as a verb and the term “ Guarantor ” shall have correlative meanings.

“ Hedge Agreement ” means, with respect to any Person, any foreign exchange contract, currency swap agreement, interest rate protection agreement, interest rate option agreement, interest rate hedge agreement or other similar agreement or arrangement designed to protect such Person or any of its Subsidiaries against fluctuations in currency values or interest rates for which such Person or any of its Subsidiaries is a party or a beneficiary.

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

“ Indebtedness ” means, for any Person (without duplication) whether recourse is to all or a portion of the assets of such Person and whether or not contingent, (a) every obligation of such Person for money borrowed, (b) every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) every reimbursement obligation of such

 

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Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person, but excluding letters of credit entered into in the ordinary course of business to the extent such letters of credit are not drawn upon, or if drawn upon, not included to the extent such drawings are reimbursed not later than the third Business Day following a demand for reimbursement, (d) every Capital Lease Obligation of such Person, (e) the maximum fixed redemption or repurchase price of Redeemable Stock of such Person, if any, at the time of determination plus accrued but unpaid dividends, (f) every obligation of such Person with respect to Hedge Agreements and Commodity Exchange Agreements, and (g) every obligation of the type referred to in clauses (a) through (f) of another Person the payment of which such Person has Guaranteed or is responsible or liable for, directly or indirectly, as obligor, Guarantor or otherwise.

“ Indenture ” means this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented. The term “Indenture” shall also include the terms of particular series of Notes established as contemplated by Section 2.01.

“ Initial Purchaser ” means the initial purchaser or initial purchasers of any series of Notes.

“ Interest Payment Date ” means, when used with respect to any installment of interest on a Note of a particular series, the date specified in such Note, a Management Committee Resolution (or Officer’s Certificate) or an indenture supplemental hereto with respect to that series as the fixed date on which an installment of interest with respect to Notes of that series is due and payable.

“ Investment Banker ” means an investment banking institution of national standing selected by the Issuer.

“ Issuer ” means Maritimes & Northeast Pipeline, L.L.C, a limited liability company duly organized and existing under the laws of the Delaware, or, subject to the provisions of Article Ten, its successors and assigns.

“ Joint Facilities ” means the 101-mile natural gas pipeline, extending from Westbrook, Maine, to Dracut, Massachusetts, built and jointly owned, as tenants-in-common with undivided interests, by the Issuer and PNGTS, and all associated infrastructure and facilities.

“ Knowledge ” means, the actual (as distinct from constructive) knowledge of any Authorized Person that also has day-to-day responsibility for the business, operation, management, finances or legal affairs of the Issuer.

“ Legend ” has the meaning set forth in Section 2.06(d).

“ Lien ” means, with respect to any Property, any mortgage, lien, pledge, charge, security interest or encumbrance in respect of such Property. For purposes herein, a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement (other than an operating lease) relating to such Property.

 

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“ LLC Agreement ” means that certain Amended and Restated Limited Liability Company Agreement of the Issuer dated as of January 31, 1996, as amended from time to time.

“ Mandatory Senior Debt Service ” means, for any period, the sum of all scheduled interest, premium (if any) and principal due and payable during such period in respect of all of the Senior Debt of the Issuer (including the Notes) and any Indebtedness (excluding intercompany Indebtedness) of any of its Subsidiaries, excluding, however, the final principal payment due and payable during such period on any Senior Debt of the Issuer or any Indebtedness of its Subsidiaries.

“ Make-Whole Premium ” means, with respect to a Note at any time, the excess (if any) of (i) the sum of the present values of all of the remaining scheduled payments of principal of and interest on the Note (other than accrued interest payable on such redemption date) from the applicable redemption date through the Final Maturity Date of such Note, computed on a semi-annual basis by discounting such payments (assuming a 360-day year consisting of twelve 30-day months and using a semi-annual yield to maturity equivalent to the applicable Treasury Rate plus such number of basis points with respect to a particular series of Notes as set forth in the Management Committee Resolution or indenture supplement hereto with respect to such series of Notes pursuant to Section 2.01) over (ii) the aggregate unpaid principal amount of the Note to be redeemed plus any accrued but unpaid interest thereon. The Make-Whole Premium shall be computed as of the third Business Day prior to the applicable redemption date, and certified, by an Investment Banker.

“ Management Committee ” means, the “Management Committee” as created under and as constituted, from time to time, pursuant to the LLC Agreement.

“ Management Committee Resolution ” means a copy of a resolution certified by an Authorized Person to have been duly adopted by the Management Committee and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“ Material Adverse Effect ” means a material adverse effect on (a) the ability of the Issuer and its Subsidiaries, taken as a whole, to perform the Issuer’s obligations under this Indenture, (b) the timely payments of any principal or interest on any Senior Debt which non-timely payment has resulted in an acceleration of the maturity of such Senior Debt or (c) the business, financial condition or results of operation of the Issuer and its Subsidiaries, taken as a whole.

“ Members ” means, collectively, M&N Management Company, Westcoast Energy (U.S.) LLC, Mobil Midstream Natural Gas Investments Inc. and Scotia Power U.S., Ltd. and/or any other members admitted to the Issuer pursuant to the LLC Agreement.

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

 

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“ Non-Recourse ” means, with respect to any Indebtedness of a Person, the sole recourse of the holder or holders of such Indebtedness is to specified properties or assets of such Person and the revenues generated thereby.

“ Note ” or “ Notes ” has the meaning stated in the first recital of this Indenture and more particularly means any notes and other evidences of senior Indebtedness authenticated and delivered under this Indenture.

“ Note Register ” and “ Note Registrar ” have the respective meanings set forth in Section 2.06(a).

“ Noteholder ,” “ holder of Notes ,” “ registered holder ,” “ holder ” or other similar term means the registered owner or owners of the Notes as shown on the Note Register.

“ Officer’s Certificate ” means a certificate signed by an Authorized Person, and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 13.05, if and to the extent required by the provisions thereof.

“ Operating Cash Flow ” means, for any period, the excess, if any, of (a) all Operating Revenues during such period over (b) all Operating Expenses during such period.

“ Operating Expenses ” means, for any period, the sum of (i) operating expenses of the Issuer and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, including operation and maintenance expenses and property and other taxes, but excluding project development costs and depreciation and amortization, regulatory asset amortization and other non-cash expenses for such period plus (ii) maintenance capital expenditures for such period.

“ Operating Revenues ” means, for any period, the operating revenues of the Issuer and its Subsidiaries, determined on a consolidated basis in accordance with GAAP.

“ Opinion of Counsel ” means a written opinion of legal counsel, who may be an employee of or regular counsel for the Issuer, reasonably acceptable to the Trustee. Each such opinion shall include the statements provided for in Section 13.05, if and to the extent required by the provisions thereof.

“ Outstanding ” means, when used with reference to Notes of any series, subject to the provisions of Section 8.04, as of any particular time, all Notes of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Notes theretofore canceled by the Trustee, or delivered to the Trustee for cancellation or which have previously been canceled; (b) Notes or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside and segregated in trust by the Issuer (if the Issuer shall act as its own paying agent); provided , however , that if such Notes or portions of such Notes are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice; (c) Notes

 

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which have been paid pursuant to Section 2.08 or in lieu of or in substitution for which other Notes shall have been authenticated and delivered pursuant to the terms of Section 2.08; and (d) Notes paid pursuant to Section 2.03 or (if certificated) surrendered for payment pursuant to Section 2.09.

“ Permitted Businesses ” means (a) gathering, transporting, treating, processing, marketing, distributing, storing or otherwise handling Hydrocarbons, (b) constructing facilities reasonably related thereto and (c) any activities or services reasonably related or ancillary to the foregoing, including entering into Commodity Exchange Agreements and Hedge Agreements to support any such business.

“ Permitted Refinancing Indebtedness ” means any Indebtedness of the Issuer or any of its Subsidiaries incurred (i) in exchange for, or the net proceeds of which are used to extend, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (ii) constituting an amendment, modification or supplement to or a deferral or renewal of ((i) and (ii) above, collectively, a “ Refinancing ”), any other Indebtedness of the Issuer or any of its Subsidiaries (other than intercompany Indebtedness), in a principal amount not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of: (1) the principal amount of the Indebtedness so Refinanced (plus, in the case of Indebtedness, the amount of premium, if any, paid in connection therewith), and (2) if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing. Notwithstanding the preceding, no Indebtedness will be deemed to be Permitted Refinancing Indebtedness, unless: (1) such Indebtedness has (a) a final maturity date or redemption date, as applicable, no earlier than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced or (b) a final maturity date or redemption date, as applicable, more than 90 days after the maturity date of the final principal installment payable on the Notes; (2) if the Indebtedness being Refinanced is contractually subordinated in right of payment to the Notes, then such Indebtedness is contractually subordinated in right of payment to the Notes on terms at least as favorable, taken as a whole, to the holders of the Notes as those contained in the documentation governing the subordinated Indebtedness being Refinanced at the time of the Refinancing; and (3) such Indebtedness is incurred by the Issuer or such Indebtedness is incurred by the subsidiary of the Issuer that is the primary obligor on the Indebtedness being Refinanced.

“ Person ” means an individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“ Pipeline ” means the approximately 330-mile underground mainline natural gas pipeline owned by the Issuer and, in respect of the Joint Facilities, owned by the Issuer and PNGTS, that runs south from two interconnections located at the Canadian-U.S. border near Baileyville, Maine into Massachusetts, and all associated infrastructure and facilities and any future expansions or extensions thereof.

 

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“ PNGTS ” means Portland Natural Gas Transmission System and its successors and assigns as co-owner of the Joint Facilities.

“ Predecessor Note ” of any particular Note means every previous Note evidencing all or a portion of the same debt as that evidenced by that particular Note; and, for the purposes of this definition, any Note authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note.

“ Preferred Stock ” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) of preferred or preference Capital Stock of such Person that is outstanding or issued on or after the date of this Indenture.

“ Principal Payment Date ” means, when used with respect to any installment of principal on a Note of a particular series, the date specified in such Note, a Management Committee Resolution (or Officer’s Certificate) or an indenture supplemental hereto with respect to that series as the fixed date on which an installment of principal with respect to Notes of that series is due and payable.

“ Principal Property ” means, whether owned or leased, on the date of this Indenture or thereafter acquired: (1) any natural gas pipeline assets of the Issuer or of any of its Subsidiaries, including any related facilities employed in the transportation, distribution, storage or marketing of refined petroleum products, natural gas liquids and carbon dioxide, that are located in the United States or any territory or political subdivision thereof; and (2) any natural gas processing or manufacturing plant or terminal owned or leased by the Issuer or any of its Subsidiaries that is located in the United States or any territory or political subdivision thereof, except, in the case of either of the foregoing clauses (1) or (2), (a) any such assets, plant or terminal consisting of inventories, furniture, office fixtures and equipment (including data processing equipment), vehicles and equipment used on, or useful with, vehicles; and (b) any such assets, plant or terminal that, in the opinion of the Management Committee, is not of material importance to the business conducted by the Issuer and its Subsidiaries taken as a whole.

“ Private Placement Legend ” means the legend set forth in Section 2.04(e)(iii) hereof to be placed on all Notes issued under this Indenture except an Unrestricted Global Note or a Regulation S Temporary Global Note or where otherwise permitted by the provisions of this Indenture.

“ Property ” means any right or interest in or to assets or property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible.

“ Redeemable Stock ” of any Person means Capital Stock of such Person that by its terms or otherwise is required to be redeemed prior to the Final Maturity Date.

“ Regulation S ” has the meaning set forth in Section 2.04(d).

“ Regulation S Legend ” has the meaning set forth in Section 2.04(e)(iv).

 

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“ Regulation S Temporary Global Note ” means a temporary Global Note substantially in the form of Exhibit A hereto, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto, bearing the Global Note Legend and the Regulation S Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes of any series initially sold in reliance on Rule 903 of Regulation S.

“ Repsol Agreement ” means the firm service agreement, dated April 21, 2006 and as revised on April 12, 2007, between the Issuer and Repsol Energy North American Corporation.

“ Responsible Officer ” means, when used with respect to the Trustee, any corporate trust officer or any other officer or assistant officer of the Trustee customarily performing functions similar to those performed by the persons who at the time shall be such corporate trust officers, or to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

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

“ Rule 144 ” has the meaning set forth in Section 2.06(b)(iii).

“ Rule 144A ” has the meaning set forth in Section 2.04(d).

“ Rule 144A Global Note ” has the meaning set forth in Section 2.04(d).

“ Rule 144A Information ” has the meaning specified in Section 4.07(b).

“ S&P ” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., and any successor to the rating agency business thereof.

“ Scheduled Payment Date ” means either an Interest Payment Date or a Principal Payment Date or both.

“ Securities Act ” means the Securities Act of 1933 and the rules and regulations promulgated thereunder.

“ Senior Debt ” means Indebtedness in respect of the Notes and any Indebtedness of the Issuer that is pari passu in right of payment to the Notes.

“ Service Commencement Date ” means the date of commencement of service under the Repsol Agreement, March 1, 2009.

“ Sponsors ” means, collectively, Spectra Energy Corp, Emera Inc. and Exxon Mobil Corporation, and their respective successors and assigns as beneficial owners of the Capital Stock of the Members.

 

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“ Stated Maturity ” means, with respect to any Note or any installment of principal thereof, the date specified in such Note as the fixed date on which any principal of such Note or any such installment of principal is due and payable and will not include any contingent obligations to repay, redeem or repurchase any such principal or installment of principal prior to the date originally fixed for the payment thereof.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership or other entity of which, more than fifty percent (50%) of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

“ Treasury Rate ” means, with respect to any Note to be redeemed, a per annum rate (expressed as a semi-annual equivalent and as a decimal and, in the case of United States Treasury bills, converted to a bond equivalent yield) determined and certified by an Investment Banker to be the per annum rate equal to the semi-annual yield to maturity of United States Treasury securities maturing on the Average Life Date (as defined below) of such Note, as determined by interpolation between the most recent weekly average yields to maturity for two series of Treasury securities, (A) one maturing as close as possible to, but earlier than, the Average Life Date of such Note and (B) the other maturing as close as possible to, but later than, the Average Life Date of such Note, in each case as published in the most recent H.15(519) (or, if a weekly average yield to maturity for United States Treasury securities maturing on the Average Life Date of such Note is reported in the most recent H.15(519), as published in such H.15(519)). “ H.15(519) ” means “Statistical Release H.15(519), Selected Interest Rates,” or any successor publication, published by the Board of Governors of the Federal Reserve System. The “ most recent H.15(519) ” means the latest H.15(519) that is published prior to the close of business on the third Business Day prior to the applicable redemption date. The “ Average Life Date ” for any Note to be redeemed shall be the date that follows the redemption date by a period equal to the Remaining Weighted Average Life of such Note. The “ Remaining Weighted Average Life ” of such Note with respect to the redemption of such Note is the number of days equal to the quotient obtained by dividing (A) the sum of the products obtained by multiplying (1) the amount of each remaining principal payment on such Note by (2) the number of days from and including the redemption date, to but excluding the Scheduled Payment Date of such principal payment by (B) the unpaid principal amount of such Note.

“ Trust Indenture Act ” means the Trust Indenture Act of 1939 and the rules and regulations promulgated thereunder.

“ Trustee ” means Deutsche Bank Trust Company Americas, and, subject to the provisions of Article Seven, shall also include its successors and assigns, and if at any time there is more than one Person acting in such capacity hereunder, “Trustee” means each such Person. The term “Trustee” as used with respect to a particular series of the Notes means the trustee with respect to that series.

 

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“ Unrestricted Global Note ” means a Global Note substantially in the form of Exhibit A hereto, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto, bearing the Global Note Legend and deposited with or on behalf of and registered in the name of the Depositary or its nominee, issued in a denomination equal to the Outstanding principal amount of the Regulation S Temporary Global Note of the same series upon expiration of the Restricted Period, or if no Regulation S Temporary Global Note has been issued because no Notes of the series were initially sold in reliance on Rule 903 of Regulation S, issued upon a transfer of a beneficial interest in a Rule 144A Global Note or an Accredited Investor Note pursuant to Section 2.06(b)(iii).

“ U.S. Person ” has the meaning attributed thereto in Regulation S.

“ Voting Stock ” means, with respect to any Person, Capital Stock of any class or kind ordinarily having general voting power under ordinary circumstances to elect at least a majority of the Management Committee (or persons fulfilling similar responsibilities) of such Person.

“ Weighted Average Life to Maturity ” means, when applied to any security or instrument at any date, the number of years obtained by dividing (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal (or redemption payments), including payment at final maturity (or mandatory redemption), in respect of such security to instrument, by (ii) the number of years (calculated to the nearest one twelfth) that will elapse between such date and the making of such payment, by (b) the then outstanding principal amount or liquidation preference of such security or instrument.

In this Indenture, unless otherwise indicated, the singular includes the plural and plural the singular; words importing any gender include the other gender; the word “or” is not exclusive; no distinction is intended between the use of the word “will” or “shall” unless the context otherwise requires; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; references to “writing” include printing, typing lithography and other means of reproducing words in a tangible visible form; the words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation” unless such words are already present in the text; references to articles, sections (or subdivisions of sections), exhibits, annexes or schedules are to this Indenture unless otherwise indicated; references to agreements and other contractual instruments shall be deemed to include all subsequent written amendments, extensions, restatements and other modifications to such agreements and instruments; references to persons and business entities include their respective permitted successors and assigns and references to governmental entities include governmental entities succeeding to their respective functions and capacities.

 

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ARTICLE TWO

Issue, Description, Terms, Execution,

Registration and Exchange of Notes

SECTION 2.01. Amount Unlimited; Issuable in Series.

The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is unlimited.

The Notes may be issued in one or more series up to the aggregate principal amount of Notes of that series from time to time authorized by, or pursuant to, a Management Committee Resolution or pursuant to one or more indentures supplemental hereto, prior to the initial issuance of Notes of a particular series. Prior to the initial issuance of Notes of any series, there shall be established in, or pursuant to, a Management Committee Resolution delivered to the Trustee, and set forth in an Officer’s Certificate delivered to the Trustee, or established in one or more indentures supplemental hereto:

(1) the title of the Notes of the series (which shall distinguish the Notes of that series from all other Notes);

(2) any limit upon the aggregate principal amount of the Notes of that series that may be authenticated and delivered under this Indenture (except for Notes authenticated and delivered upon registration of transfer of, in exchange for, or in lieu of other Notes of that series);

(3) the date or dates on which the principal of the Notes of that series is payable;

(4) the rate or rates at which the Notes of that series shall bear interest or the manner of calculation of such rate or rates, if any;

(5) the date or dates from which such interest shall accrue, the Scheduled Payment Dates on which principal or interest or both will be payable or the manner of determination of such Scheduled Payment Dates and the record date for the determination of holders to whom principal or interest or both are payable on any such Scheduled Payment Dates;

(6) the period or periods within which, the price or prices at which, and the terms and conditions upon which, Notes of that series may be redeemed, in whole or in part, at the option of the Issuer;

(7) the obligation, if any, of the Issuer to redeem or purchase Notes of that series pursuant to any sinking fund or analogous provisions (including payments made in cash in anticipation of future sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price or prices at which, and the terms and conditions upon which, Notes of that series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;

 

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(8) the form or forms of the Note of that series including the form of the Certificate of Authentication for that series, if other than substantially in the form set forth in Exhibit A hereto;

(9) if denominations of other than $100,000 or integral multiples of $1,000 in excess thereof, the denominations in which Notes of that series shall be issuable;

(10) whether the Notes of that series are issuable as one or more Global Notes and, in such case, the identity of the Depositary for that series and the related procedures with respect to transfer and exchange of such Global Notes;

(11) any provisions in addition to or in lieu of, those permitted by this Indenture relating to Events of Default or covenants of the Issuer with respect to such series of Notes;

(12) any and all other terms with respect to that series (which terms shall not be inconsistent with the terms of this Indenture), including any terms required to establish one or more series of medium term notes or to issue any Notes with original issue discount; and

(13) any transfer restrictions and accompanying legends in addition to, or in lieu of, those set forth herein.

All Notes of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to any such Management Committee Resolution or in any indentures supplemental hereto.

If any of the terms of that series are established by action taken pursuant to a Management Committee Resolution, a copy of an appropriate record of such action shall be certified by an Authorized Person of the Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of that series. Notwithstanding Section 2.01(2) herein and unless otherwise expressly provided with respect to a series of Notes, the aggregate principal amount of a series of Notes may be increased and additional Notes of such series may be issued up to the maximum aggregate principal amount authorized with respect to such series as increased, provided that all Notes of such series are fungible for U.S. federal income tax purposes. Such Notes, and any additional Notes of the same series subsequently issued hereunder, shall be treated as a single class for all purposes of this Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase.

SECTION 2.02. Form of Notes.

The Notes of any series and the Certificate of Authentication borne by such Notes shall, if other than substantially in the form attached hereto as Exhibit A, be substantially of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Management Committee Resolution and as set forth in an Officer’s Certificate, and may have such letters, numbers or other marks of identification or designation and such legends or

 

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endorsements printed, lithographed or engraved thereon as the Issuer may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Notes of that series may be listed, or to conform to usage.

SECTION 2.03. Denominations, Interest and Principal.

The Notes shall be issuable as registered Notes and in minimum denominations of $100,000 or integral multiples of $1,000 in excess thereof, subject to Section 2.01(9). The Notes of a particular series shall bear interest payable on the dates and at the rate or rates specified with respect to that series. The principal of and the interest on the Notes of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable to Noteholders in Dollars, at the office or agency of the Issuer maintained for that purpose in accordance with Section 4.02 hereof; provided that the payment of principal with respect to any Note upon redemption or at the Final Maturity Date will be made only upon surrender of that Note to the Trustee. For so long as any Notes are issued as a Global Note, payments of principal of, premium, if any, and interest on such Global Note shall be made by the Issuer in immediately available funds by wire transfer to the Depositary or its nominee. At the Issuer’s option, payments on the Notes of any series, if such Notes are issued in certificated form, may also be made to Noteholders (i) by checks mailed by the Trustee to the Persons entitled thereto at their registered addresses or (ii) to a registered holder of $1,000,000 or more in aggregate principal amount of the Notes of a series who has delivered a written request to the Trustee at least 5 Business Days prior to the relevant Scheduled Payment Date electing to have payments on such Notes made by wire transfer to a designated account in the United States of America, by wire transfer of immediately available funds to such designated account; provided that, in either case, the payment of the principal with respect to any such Note due upon redemption or at the Final Maturity Date will be made only upon surrender of that Note to the Trustee. Each Note shall be dated the date of its authentication. Subject to Section 2.01(4), Interest on the Notes shall be computed on the basis of a 360-day year composed of twelve 30-day months.

The principal of or interest on any Note, as well as premium thereon, if any, in case of redemption prior to the Fixed Maturity Date, which is payable, and is punctually paid or duly provided for, on any Scheduled Payment Date for Notes of that series shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the regular record date for such payments. In the event that any Note of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Scheduled Payment Date and prior to such Scheduled Payment Date, the principal of and interest on that Note, as well as premium thereon, if any, will be paid upon presentation and surrender of that Note as provided in Section 3.03.

 

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Any principal of or interest on any Note of any series which is payable, but is not punctually paid or duly provided for, on any Scheduled Payment Date for such Notes (herein called “ Defaulted Payment ”) shall forthwith cease to be payable to the registered holder on the relevant regular record date by virtue of having been such holder, and such Defaulted Payment shall be paid by the Issuer, at its election, as provided in clause (1) or clause (2) below:

(1) The Issuer may elect to make payment of any Defaulted Payment on Notes to the Persons in whose names such Notes (or their respective Predecessor Notes) are registered at the close of business on a special record date for the payment of such Defaulted Payment, which shall be fixed in the following manner: the Issuer shall notify the Trustee in writing of the amount of Defaulted Payment proposed to be paid on each such Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Payment or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Payment as in this clause provided. Thereupon, the Trustee shall fix a special record date for the payment of such Defaulted Payment which shall not be more than 15 nor less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such special record date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Payment and the special record date therefor to be mailed, first-class postage prepaid, to each Noteholder at such Noteholder’s address as it appears in the Note Register (as hereinafter defined), not less than 10 days prior to such special record date. Notice of the proposed payment of such Defaulted Payment and the special record date therefor having been mailed as aforesaid, such Defaulted Payment shall be paid to the Persons in whose names such Notes (or their respective Predecessor Notes) are registered on such special record date and shall be no longer payable pursuant to the following clause (2).

(2) The Issuer may make payment of any Defaulted Payment on any Notes in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Unless otherwise set forth in a Management Committee Resolution (or in an Officer’s Certificate) or one or more indentures supplemental hereto establishing the terms of any series of Notes pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of Notes with respect to any Scheduled Payment Date for Notes of that series shall mean either the 15th day of the month immediately preceding the month in which the Scheduled Payment Date established for that series pursuant to Section 2.01 hereof shall occur, if such Scheduled Payment Date is the first day of a month, or the last day of the month immediately preceding the month in which an Scheduled Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if such Scheduled Payment Date is the 15th day of a month, whether or not such date is a Business Day.

Subject to the foregoing provisions of this Section, each Note of a series delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Note.

 

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SECTION 2.04. Printing, Execution and Authentication of Notes.

(a) The Notes shall, subject to the provisions of Section 2.07, be printed or legibly typed, as the proper officers of the Issuer or its managing member may determine, and shall be signed on behalf of the Issuer or its managing member by an Authorized Person and need not be attested. The signature of the Authorized Person upon the Notes may be in the form of a facsimile signature of a present or any future Authorized Person and may be imprinted or otherwise reproduced on the Notes and for that purpose the Issuer may use the facsimile signature of any person who shall have been an Authorized Person, notwithstanding the fact that at the time the Notes shall be authenticated and delivered or disposed of that person shall have ceased to be an Authorized Person.

(b) Only such Notes as shall bear thereon a Certificate of Authentication substantially in the form established for such Notes, executed manually by an authorized officer of the Trustee, or by any Authenticating Agent with respect to such Notes, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate executed by the Trustee, or by any Authenticating Agent appointed by the Trustee with respect to such Notes, upon any Notes executed by the Issuer shall be conclusive evidence that the Note so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes of any series executed by the Issuer to the Trustee for authentication, together with a written order of the Issuer for the authentication and delivery of such Notes, signed by an Authorized Person, and the Trustee in accordance with such written order shall authenticate and deliver such Notes.

In connection with the Trustee’s authenticating such Notes and accepting the additional responsibilities under this Indenture in relation to such Notes, there shall be delivered to the Trustee, and (subject to Section 7.01) the Trustee shall be fully protected in conclusively relying upon, (i) an Opinion of Counsel and (ii) an Officer’s Certificate, each stating that (1) the form of such Notes has been established by an indenture supplemental hereto or by or pursuant to a Management Committee Resolution in conformity with the provisions of this Indenture and (2) the terms of such Notes have been established in accordance with the provisions of this Indenture. In addition, such Opinion of Counsel shall state that such Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Issuer, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles. Each Opinion of Counsel and Officer’s Certificate delivered pursuant to this Section 2.04 shall include all statements prescribed by Section 13.05. If all the Notes of any series are not to be issued

 

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at one time, it shall not be necessary to deliver an Opinion of Counsel and Officer’s Certificate at the time of issuance of each Note, but such opinion and certificate shall be delivered at or before the time of issuance of the first Note of such series to be issued.

(c) Any of the Notes may be issued with appropriate insertions, omissions, substitutions and variations, and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with the rules of any securities market in which the Notes are admitted to trading, or to conform to general usage.

(d) Notes offered and sold in reliance on Rule 903 of Regulation S under the Securities Act (“ Regulation S ”) shall be issued initially in the form of the Regulation S Temporary Global Note, for each series of Notes, which will be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, at the Corporate Trust Office, as custodian for the Depositary, and registered in the name of the Depositary or the nominee of the Depositary for the accounts of designated agents holding on behalf of Euroclear or Clearstream, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The Restricted Period will be terminated upon the receipt by the Trustee of:

(1) a written certificate from the Depositary, together with copies of certificates from Euroclear and Clearstream certifying that they have received certification of non-United States beneficial ownership of 100% of the aggregate principal amount of the Regulation S Temporary Global Note (except to the extent of any beneficial owners thereof who acquired an interest therein during the Restricted Period pursuant to another exemption from registration under the Securities Act; and

(2) an Officer’s Certificate from the Issuer stating that the Restricted Period has terminated.

Following the termination of the Restricted Period, beneficial interests in the Regulation S Temporary Global Note for a series will be exchanged for beneficial interests in the Unrestricted Global Note for the same series substantially in the form of the Note attached as Exhibit A, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto, bearing the Global Note Legend, duly executed by the Issuer and authenticated and delivered by the Trustee as hereinafter provided pursuant to the Applicable Procedures. Simultaneously with the authentication of the Unrestricted Global Note, the Trustee will cancel the Regulation S Temporary Global Note.

Notes offered and sold in reliance on Rule 144A under the Securities Act (“ Rule 144A ”) shall be issued in the form of one or more permanent Global Notes (the “ Rule 144A Global Notes ”) for each series of Notes in definitive, fully registered form without

 

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interest coupons substantially in the form of the Note attached as Exhibit A, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with the Trustee, at the Corporate Trust Office, as custodian for the Depositary, duly executed by the Issuer and authenticated and delivered by the Trustee as hereinafter provided.

Notes offered and sold to institutions that are “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of the Securities Act (but not qualified institutional buyers) shall be issued in the form of one or more permanent Global Notes (the “ Accredited Investor Global Notes ”) for each series of Notes in definitive, fully registered form without interest coupons substantially in the form of the Note attached as Exhibit A, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto, bearing the Global Note Legend and the Private Placement Legend and deposited with the Trustee, at the Corporate Trust Office, as custodian for the Depositary, duly executed by the Issuer and authenticated and delivered by the Trustee as hereinafter provided.

The aggregate principal amount of any Global Note with respect to any series of Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as such or as custodian for the Depositary, and the Depositary or its nominee, as the case may be, as hereinafter provided.

(e) (i) Except as otherwise provided pursuant to Section 2.01(13), this Section 2.04(e)(i) shall apply only to Notes in global form (“ Global Notes ”). The Issuer shall execute and the Trustee shall, in accordance with this Section 2.04(e)(i), authenticate and deliver Global Notes for each series of Notes that (a) shall be registered in the name of the Depositary for such Global Notes or the nominee of such Depositary, (b) shall be deposited on behalf of Agent Members (as defined herein) with the Trustee, as custodian for the Depositary, and (c) shall bear legends substantially to the following effect (the “ Global Note Legend ”):

“UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR

 

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VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN”.

“TRANSFERS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION 2.06 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF”.

(ii) Members of, or participants in, a Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Depositary or under any Global Note, and the Depositary may be treated by the Issuer, the Trustee, and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a holder of any security.

(1) Except as otherwise provided pursuant to Section 2.01(13), this Section 2.04(e)(ii) shall apply only to the Global Notes deposited on behalf of the purchasers of the Notes represented thereby with the Trustee as custodian for the Depositary for credit to their respective accounts (or to such other accounts as they may direct) at Euroclear or Clearstream insofar as interests in the Global Notes are held by the Agent Members for Euroclear or Clearstream.

(2) The provisions of the “Operating Procedures of the Euroclear System” and the “Terms and Conditions Governing Use of Euroclear” and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream, respectively, shall be applicable to such Global Notes insofar as interests therein are held by the Agent Members for Euroclear and Clearstream.

(iii) Except as otherwise provided pursuant to Section 2.01(13), this Section 2.04(e)(iii) shall apply only to the Rule 144A Global Notes, Accredited Investor Global Notes and any certificated Notes issued in accordance with Section 2.05 hereof in exchange therefor. For each series of Notes, the Issuer shall execute and the Trustee shall, in accordance with this Section 2.04(e)(iii), authenticate and deliver Rule 144A Global Notes, Accredited Investor Global

 

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Notes and certificated Notes issued in accordance with Section 2.05 hereof in exchange therefor, Notes that shall bear legends substantially to the following effect:

“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:

(1) REPRESENTS THAT IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A “QIB”) OR AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN “INSTITUTIONAL ACCREDITED INVESTOR”);

(2) AGREES THAT IT WILL NOT, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144 UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER, IF THE ISSUER SO REQUESTS, THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND

 

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(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.

AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION” AND “UNITED STATES” HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE GOVERNING THIS NOTE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.”

(iv) Except as otherwise provided pursuant to Section 2.01(13), this Section 2.04(e)(iv) shall apply only to Regulation S Temporary Global Notes. The Issuer shall execute and the Trustee shall, in accordance with this Section 2.04(e)(iv), authenticate and deliver Regulation S Temporary Global Notes issued in accordance with Section 2.05 that shall bear legends substantially to the following effect (the “ Regulation S Legend ”):

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

SECTION 2.05. Global Notes.

(a) Portions of a Global Note of any series deposited with the Depositary pursuant to Section 2.04 shall be transferred in certificated form to the beneficial owners thereof only if such transfer complies with Section 2.06 and (i) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Note or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor depositary is not appointed by the Issuer within 90 days of such notice or within 90 days after the Issuer becomes aware of such cessation, (ii) an Event of Default has occurred and is continuing with respect to the Notes of such series and payment of principal thereof and interest thereon has been accelerated and the owners of beneficial interests in the Global Notes with fractional undivided interests aggregating a majority interest advise the Trustee, the Issuer and the Depositary through Agent Members in writing that the continuation of a book-entry system through the Depositary or its successors is no longer in their best interest or (iii) the Issuer determines (subject to the Applicable Procedures) that the Notes of such series shall no longer be represented by such Global Note.

 

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(b) A Global Note of a series, portions of which are transferable to the beneficial owners thereof pursuant to this Section 2.05, shall be surrendered by the Depositary to the Trustee at its Corporate Trust Office for registration of transfer, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such registration of transfer of each portion of such Global Note, an equal aggregate principal amount of certificated Notes of such series of authorized denominations. Any portion of a Global Note whose registration is transferred pursuant to this Section 2.05 shall be executed, authenticated and delivered only in the denominations, if other than as specified in Section 2.01(9), specified in the Management Committee Resolution or indenture supplemental hereto with respect to such series of Notes and registered in such names as the Depositary shall direct. Any Note of any series delivered in exchange for a portion of a Rule 144A Global Note or an Accredited Investor Global Note of such series shall bear the Private Placement Legend.

(c) Subject to the provisions of Section 2.04(e) above, the registered holder of any Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Noteholder is entitled to take under this Indenture or the Notes of the applicable series.

(d) In the event of the occurrence of any of the events specified in paragraph (a) of this Section 2.05, the Issuer shall promptly make available to the Trustee a reasonable supply of certificated Notes of each applicable series in definitive fully registered form without interest coupons.

(e) The Global Notes of each series issued and authenticated pursuant to the first paragraph of Section 2.04(d) (both before and after the expiration of the Restricted Period), and any Accredited Investor Global Notes of each series and the Rule 144A Global Notes of each series shall each be assigned separate securities identification numbers.

(f) None of the Issuer, the Trustee nor any agent of the Issuer or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

SECTION 2.06. Registration, Registration of Transfer and Exchange.

(a) The Issuer shall cause to be kept at each office or agency to be maintained for the purpose as provided in Section 4.02 hereof a register or registers (herein referred to as the “ Note Register ”) in which, subject to such reasonable regulations as it may prescribe, it will register or cause to be registered, and will register or cause to be

 

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registered the transfer of, Notes as in this Article provided. The Trustee is hereby appointed “ Note Registrar ” for the purpose of registering Notes and transfers of Notes as herein provided. Any successor Note Registrar shall be appointed as authorized by a Management Committee Resolution. If at any time the Trustee shall not be serving as Note Registrar, at all reasonable times such Note Register shall be open for inspection by the Trustee. In no case shall there be more than one Note Register per series of Notes.

Upon due presentation for registration of transfer of any Note at each such office or agency, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Note or Notes of the same series in authorized denominations for a like aggregate principal amount.

Any Note or Notes may be exchanged for a Note or Notes of the same series in other authorized denominations, in an equal aggregate principal amount. Notes to be exchanged shall be surrendered at the office or agency of the Issuer designated for such purpose as provided in Section 4.02 hereof, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Note or Notes of the same series which the Noteholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.

All Notes presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer or the Trustee, duly executed by the Noteholder or its attorney duly authorized in writing.

The Issuer or Trustee shall not be required to exchange or register a transfer of (a) any Notes of any series for a period of 15 days next preceding the first mailing of notice of redemption of Notes of such series to be redeemed, (b) any Note of any series selected, called or being called for redemption except, in the case of any Note of such series where notice has been given to the Noteholders that such Note is to be redeemed in part, the portion thereof not so to be redeemed or (c) any Note of any series that, in accordance with its terms, has been surrendered for repayment at the option of the Noteholder, except the portion, if any, of such Note not to be so repaid.

All Notes of any series issued upon any registration of transfer or exchange of Notes shall be valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as such Notes of such series surrendered upon such registration of transfer or exchange.

(b) Notwithstanding any provision to the contrary herein, so long as a Global Note of any series remains Outstanding and is held by or on behalf of the Depositary, transfers of a Global Note of such series, in whole or in part, shall only be made (x) in the case of transfers of portions of a Global Note of such series to the beneficial owners thereof in certificated form, in accordance with Section 2.05, and (y) in all other cases, in accordance with this Section 2.06(b) (and subject, in each case, to the provisions of any Legend (as defined in Section 2.06(d)) imprinted on such Global Note).

 

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(i) Transfers of Global Notes as such . Subject to Section 2.05 and to clauses (ii) through (vi) of this Section 2.06(b), transfers of a Global Note shall be limited to transfers of such Global Note in whole, and not in part, to the Depositary, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.

(ii) Rule 144A Global Note or Accredited Investor Global Note to Regulation S Temporary Global Note . If a holder of a beneficial interest in either the Rule 144A Global Note or the Accredited Investor Global Note of any series deposited with the Depositary wishes at any time to exchange its interest in such Global Note for an interest in the Regulation S Temporary Global Note of such series or transfer its interest in such Global Note to a Person who wishes to take delivery thereof in the form of an interest in the Regulation S Temporary Global Note of such series, such holder may, subject to the Applicable Procedures, exchange or transfer or cause the exchange or transfer of such interest for an equivalent beneficial interest in the Regulation S Temporary Global Note of such series in accordance with, and subject to, this clause (ii). Upon receipt by the Trustee at the Corporate Trust Office of (1) instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Regulation S Temporary Global Note of any series in an amount equal to the beneficial interest in the Rule 144A Global Note or the Accredited Investor Global Note of such series to be exchanged or transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the Euroclear or Clearstream account to be credited with such increase and the name of such account, and (3) a certificate in the form of Exhibit B attached hereto given by the holder of such interest stating that the exchange or transfer of such interest has been made in compliance with the transfer restrictions applicable to the Notes of such series and pursuant to and in accordance with Regulation S, the Trustee shall instruct the Depositary to reduce the Rule 144A Global Note or the Accredited Investor Global Note of such series, as applicable, by the aggregate principal amount of the beneficial interest in the Global Note of such series to be so exchanged or transferred and the Trustee shall instruct the Depositary, concurrently with such reduction, to increase the principal amount of the Regulation S Temporary Global Note of such series by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note or the Accredited Investor Global Note of such series, as applicable, to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions (who shall be the Agent Member for Euroclear or Clearstream, or both, as the case may be) a beneficial interest in the Regulation S Temporary Global Note of such series equal to the reduction in the principal amount of the Rule 144A Global Note or the Accredited Investor Global Note of such series, as the case may be.

(iii) Rule 144A Global Note or Accredited Investor Global Note to Unrestricted Global Note . If a holder of a beneficial interest in the Rule 144A

 

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Global Note or the Accredited Investor Global Note of any series deposited with the Depositary wishes at any time to exchange its interest in such Global Note for an interest in the Unrestricted Global Note of such series or transfer its interest in such Global Note to a Person who wishes to take delivery thereof in the form of an interest in the Unrestricted Global Note of such series, such holder may, subject to the Applicable Procedures, exchange or cause the exchange or transfer or cause the transfer of such interest for an equivalent beneficial interest in the Unrestricted Global Note of such series in accordance with, and subject to, this clause (iii). Upon receipt by the Trustee at the Corporate Trust Office of (1) instructions given in accordance with the Applicable Procedures from an Agent Member directing the Trustee to credit or cause to be credited a beneficial interest in the Unrestricted Global Note of a series in an amount equal to the beneficial interest in the Rule 144A Global Note or the Accredited Investor Global Note of such series to be exchanged or transferred, (2) a written order given in accordance with the Applicable Procedures containing information regarding the participant account of the Depositary and, if applicable, the Euroclear or Clearstream account to be credited with such increase and (3) a certificate in the form of Exhibit C attached hereto given by the holder of such interest stating that the exchange or transfer of such interest has been made in compliance with the transfer restrictions applicable to the Notes of such series and (A) in the case of an exchange, that either (x) the Note being exchanged is not a “restricted security” as defined in Rule 144 under the Securities Act (“ Rule 144 ”), or (y) the exchange is being made to facilitate a contemporaneous transfer that complies with this clause (iii), (B) in the case of a transfer pursuant to Regulation S, that the Note is being transferred pursuant to and in accordance with Regulation S, (C) in the case of a transfer pursuant to Rule 144, that the Note is being transferred pursuant to and in accordance with Rule 144 or (D) in the case of a transfer pursuant to another exemption from the Securities Act (other than Rule 144A), specifying the basis for such exemption, the Trustee shall instruct the Depositary to reduce the Rule 144A Global Note or the Accredited Investor Global Note of such series, as applicable, by the aggregate principal amount of the beneficial interest in the Global Note of such series to be so exchanged or transferred, and the Trustee shall instruct the Depositary, concurrently with such reduction, to increase the principal amount of the Unrestricted Global Note of such series by the aggregate principal amount of the beneficial interest in the Rule 144A Global Note or the Accredited Investor Global Note of such series, as applicable, to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Unrestricted Global Note of such series equal to the reduction in the principal amount of the Rule 144A Global Note or the Accredited Investor Global Note of such series, as the case may be.

(iv) Regulation S Temporary Global Note, Unrestricted Global Note or Accredited Investor Global Note to Rule 144A Global Note . If a holder or a beneficial interest in the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of any series deposited with

 

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the Depositary wishes at any time to exchange its interest in such Global Note for an interest in the Rule 144A Global Note of such series or transfer its interest in such Global Note to a Person who wishes to take delivery thereof in the form of an interest in the Rule 144A Global Note of such series, such holder may, subject to the Applicable Procedures, exchange or transfer or cause the exchange or transfer of such interest for an equivalent beneficial interest in the Rule 144A Global Note of such series in accordance with, and subject to, this clause (iv); provided , however , that prior to the termination of the Restricted Period, exchanges or transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon receipt by the Trustee at the Corporate Trust Office of (1) instructions from Euroclear or Clearstream or the Depositary, as the case may be, directing the Trustee to credit or cause to be credited a beneficial interest in the Rule 144A Global Note of a series in an amount equal to the beneficial interest in the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of such series to be exchanged or transferred, such instructions to contain information regarding the Agent Member’s account with the Depositary to be credited with such increase, and, with respect to an exchange or transfer of an interest in the Unrestricted Global Note or the Accredited Investor Global Note of such series, information regarding the Agent Member’s account with the Depositary to be debited with such decrease, and (2) a certificate in the form of Exhibit D attached hereto given by the holder of such interest and stating that the Person exchanging or transferring such interest in the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of such series, as the case may be, reasonably believes that the Person acquiring such interest in the Rule 144A Global Note is a qualified institutional buyer (as defined in Rule 144A) and is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A, Euroclear or Clearstream or the Trustee, as the case may be, shall instruct the Depositary to reduce the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of such series, as the case may be, by the aggregate principal amount of the beneficial interest in the Global Note of such series to be so exchanged or transferred, and the Trustee shall instruct the Depositary, concurrently with such reduction, to increase the principal amount of the Rule 144A Global Note of such series by the aggregate principal amount of the beneficial interest in the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of such series, as the case may be, to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Rule 144A Global Note of such series equal to the reduction in the principal amount of the Regulation S Temporary Global Note, the Unrestricted Global Note or the Accredited Investor Global Note of such series, as the case may be.

 

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(v) Rule 144A Global Note, Regulation S Temporary Global Note or Unrestricted Global Note to Accredited Investor Global Note . If a holder of a beneficial interest in the Rule 144A Global Note, the Regulation S Temporary Global Note or the Unrestricted Global Note of any series deposited with the Depositary wishes at any time to exchange its interest in such Global Note for an interest in the Accredited Investor Global Note of such series or transfer its interest in such Global Note to a Person who wishes to take delivery thereof in the form of an interest in the Accredited Investor Global Note of such series, such holder may, subject to the Applicable Procedures, exchange or transfer or cause the exchange or transfer of such interest for an equivalent beneficial interest in the Accredited Investor Global Note of such series in accordance with, and subject to, this clause (v); provided , however , that prior to the termination of the Restricted Period, exchanges or transfers of beneficial interests in the Regulation S Temporary Global Note may not be made to a U.S. Person or for the account or benefit of a U.S. Person (other than an Initial Purchaser). Upon receipt by the Trustee at the Corporate Trust Office of a certificate in the form of Exhibit E attached hereto given by the holder of such beneficial interest and stating that the Person exchanging or transferring such interest reasonably believes that the Person acquiring such interest in an Accredited Investor Global Note of such series is an institution that is an “accredited investor” (as defined in Rule 501(a)(l), (2), (3) or (7) under the Securities Act) and is obtaining such interest in a transaction exempt from the Securities Act and of a certificate in the form of Exhibit F attached hereto given by the transferee of such interest certifying that it is an institution that is an “accredited investor” (as defined in Rule 501(a)(l), (2), (3) or (7) under the Securities Act), Euroclear or Clearstream or the Trustee, as the case may be, shall instruct the Depositary to reduce the Regulation S Temporary Global Note, the Unrestricted Global Note or the Rule 144A Global Note of such series, as the case may be, by the aggregate principal amount of the beneficial interest in such Global Note to be so exchanged or transferred, and the Trustee shall instruct the Depositary, concurrently with such reduction, to increase the principal amount of the Accredited Investor Global Note of such series by the aggregate principal amount of the beneficial interest in the Regulation S Temporary Global Note, the Unrestricted Global Note or the Rule 144A Global Note of such series, as the case may be, to be so exchanged or transferred, and to credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Accredited Investor Global Note of such series equal to the reduction in the principal amount of the Rule 144A Global Note, the Regulation S Temporary Global Note or the Unrestricted Global Note of such series, as the case may be.

(vi) Other Exchanges . In the event that a Global Note is exchanged for Notes in definitive registered form without interest coupons pursuant to Section 2.05 hereof, such Notes may be exchanged or transferred for one another only in accordance with such procedures as are substantially consistent with the provisions of clauses (ii) through (v) above (including, without limitation, the certification requirements intended to insure that such exchanges or transfers

 

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comply with the provisions of Rule 144A, Rule 144 or Regulation S and generally with the Securities Act, as the case may be) and as may be from time to time adopted by the Issuer and the Trustee.

(c) Successive registrations and registrations of transfers and exchanges as aforesaid may be made from time to time as desired, and each such registration shall be noted on the Note Register. No service charge shall be made for any registration of transfer or exchange of the Notes, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith and any other amounts required to be paid by the provisions of the Notes.

(d) If Notes are issued upon the registration of transfer, exchange or replacement of Notes not bearing the legends required by the form of Note attached as Exhibit A, or such other form as shall be established by or pursuant to a Management Committee Resolution (and set forth in an Officer’s Certificate) or one or more indentures supplemental hereto (collectively, the “ Legend ”), the Notes so issued shall not bear the Legend. If Notes are issued upon the registration or transfer, exchange or replacement of Notes bearing the Legend, or if a request is made to remove the Legend on a Note, the Notes so issued shall bear the Legend, or the Legend shall not be removed, as the case may be, unless there is delivered to the Issuer and the Trustee such satisfactory evidence, which may include an opinion of counsel of recognized standing licensed to practice law in the State of New York and experienced in matters involving the Securities Act, as may be reasonably required by the Issuer that neither the Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S and generally with Securities Act or that such Notes are not “restricted securities” (within the meaning of Rule 144). Upon provision of such satisfactory evidence, the Trustee, at the direction of the Issuer, shall authenticate and deliver a Note that does not bear the Legend. If a Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Issuer, the Legend shall be reinstated.

SECTION 2.07. Temporary Notes.

Pending the preparation of definitive Notes of any series, the Issuer may execute, and the Trustee shall authenticate and deliver, temporary Notes (printed, lithographed or typewritten) of any authorized denomination, and substantially in the form of the definitive Notes in lieu of which they are issued, but with such omissions, insertions and variations as may be appropriate for temporary Notes, all as may be determined by the Issuer. Every temporary Note of any series shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Notes of that series in accordance with the terms of Section 2.04 hereof. Without unnecessary delay the Issuer will execute and will furnish definitive Notes of such series and thereupon any or all temporary Notes of that series may be surrendered in exchange therefor (without charge to the holders), at the office or agency of the Issuer designated for the purpose in compliance with Section 4.02 hereof, and the Trustee shall authenticate and such office or agency shall deliver in exchange for such temporary Notes an equal aggregate principal amount of definitive Notes of that series, unless

 

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the Issuer advises the Trustee to the effect that definitive Notes need not be executed and furnished until further notice from the Issuer. Until so exchanged, the temporary Notes of that series shall be entitled to the same benefits under this Indenture as definitive Notes of that series authenticated and delivered hereunder.

SECTION 2.08. Mutilated, Destroyed, Lost and Stolen Notes.

In case any Note shall become mutilated or be destroyed, lost or stolen, the Issuer (subject to the next succeeding sentence) shall execute, and upon its request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Note of the same series bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so destroyed, lost or stolen. In every case the applicant for a substituted Note shall furnish to the Issuer and to the Trustee such security or indemnity as may be required by them to save each of them harmless and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and to the Trustee evidence to their satisfaction of the destruction, loss or theft of the applicant’s Note and of the ownership thereof. The Trustee may authenticate any such substituted Note and deliver the same upon the written order of the Issuer. Upon the issuance of any substituted Note, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and the expenses of the Trustee) connected therewith. In case any Note which has matured or is about to mature or has been called for redemption shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a substituted Note, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Note) if the applicant for such payment shall furnish to the Issuer and to the Trustee such security or indemnity as they may require to save them harmless and, in case of destruction, loss or theft, evidence to the satisfaction of the Issuer and the Trustee of the destruction, loss or theft of such Note and of the ownership thereof.

Every Note issued pursuant to the provisions of this Section in substitution for any Note which is mutilated, destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be found at any time, or be enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of the same series duly issued hereunder. All Notes shall be held and owned upon the express condition that the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.

SECTION 2.09. Cancellations.

All Notes surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Issuer or any paying agent, be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be canceled by it, and no Notes shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this Indenture. On written request of the Issuer, the Trustee shall deliver to the Issuer

 

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canceled Notes held by the Trustee. All canceled Notes held by the Trustee shall be disposed of in accordance with the Trustee’s policy of disposal of canceled Notes; provided that the Trustee shall not be required to destroy canceled Notes. If the Issuer shall otherwise acquire any of the Notes, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Notes unless and until the same are delivered to the Trustee for cancellation.

SECTION 2.10. Benefits of Indenture.

Nothing in this Indenture or in the Notes, express or implied, shall give or be construed to give to any Person, other than the parties hereto and the holders of the Notes, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; all such covenants, conditions and provisions being for the sole benefit of the parties hereto and of the holders of the Notes.

SECTION 2.11. Authenticating Agent.

So long as any of the Notes of any series remain Outstanding, there may be an Authenticating Agent for any or all such series of Notes which the Trustee shall have the right to appoint. The Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Notes of such series issued upon exchange, transfer or partial redemption thereof, and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Notes of any series by the Trustee shall be deemed to include authentication by an Authenticating Agent for such series except for authentication upon original issuance or pursuant to Section 2.07 hereof. Each Authenticating Agent shall be acceptable to the Issuer and shall be a bank or trust company or corporation which has a combined capital and surplus, as most recently reported or determined by it, of not less than $100.0 million, and which is otherwise authorized under such laws to conduct a trust business and is subject to supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.

Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Issuer. The Trustee may at any time (and upon request by the Issuer shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon resignation, termination or cessation of eligibility of any Authenticating Agent, the Trustee may appoint an eligible successor Authenticating Agent acceptable to the Issuer and shall mail written notice of such appointment to all Noteholders of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Note Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.

 

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SECTION 2.12. CUSIP Numbers.

The Issuer in issuing the Notes may, and in the case of Global Notes pursuant to Section 2.05(e) shall, use “CUSIP” numbers (if then generally in use), and, if so used, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to holders of Notes; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP numbers.

ARTICLE THREE

Redemption of Notes

SECTION 3.01. Redemption of Notes.

The Issuer may redeem the Notes of any series issued hereunder on and after the dates and in accordance with the terms established for that series pursuant to Section 2.01 hereof, including the redemption of Notes, at the Issuer’s option, in whole or in part, at any time (subject to Section 2.01), at a redemption price equal to the principal amount of the Notes to be redeemed, plus the Make-Whole Premium, if any, plus accrued and unpaid interest, if any, on such Notes to, but excluding, the date of redemption or at such other redemption price as may be determined pursuant to Section 2.01.

SECTION 3.02. Notices of Redemption.

(a) In case the Issuer shall desire to exercise the right, at its option pursuant to Section 3.01, to redeem all or, as the case may be, a portion of the Notes of any series in accordance with the right reserved so to do, it shall give notice of such redemption to holders of the Notes of the series to be redeemed by mailing, first-class postage prepaid, a notice of such redemption not less than 30 days and not more than 60 days before the date fixed for redemption of that series to such holders at their last addresses as they shall appear upon the Note Register.

(b) Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to give such notice to the holder of any Note of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Notes of that series or any other series. In the case of any redemption of Notes prior to the expiration of any restriction on such redemption or pursuant to an election of the Issuer which is subject to a condition provided in the terms of such Notes or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officer’s Certificate evidencing compliance with any such restriction or condition.

 

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Each such notice of redemption shall identify the Notes to be redeemed (including CUSIP numbers), specify the date fixed for redemption and the redemption price at which Notes of that series are to be redeemed, or if not then ascertainable, the manner of calculation thereof, and shall state that payment of the redemption price of the Notes to be redeemed will be made at the office or agency of the Issuer maintained in accordance with Section 4.02 hereof and identified in such notice, upon presentation and surrender of such Notes, that interest accrued to the date fixed for redemption will be paid as specified in that notice and that from and after that date interest will cease to accrue. If less than all the Notes of a series are to be redeemed, the notice to the holders of Notes of that series to be redeemed shall specify the particular Notes to be so redeemed. In case any Note is to be redeemed in part only, the notice which relates to such Note shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Note, a new Note or Notes of that series in principal amount equal to the unredeemed portion thereof will be issued.

(c) The Issuer shall give the Trustee at least 45 days’ advance notice of the date fixed for redemption (unless shorter notice shall be acceptable to the Trustee) as to the aggregate principal amount of Notes of the series to be redeemed, and thereupon the Trustee shall select the Notes to be redeemed (in principal amount of $100,000 or integral multiples of $1,000 in excess thereof), by lot, on a pro rata basis or by another method the Trustee deems fair and appropriate (except, (i) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed, as such requirements shall be certified to the Trustee by the Issuer in an Officer’s Certificate, or (ii) if otherwise required by law) and shall thereafter promptly notify the Issuer and the Note Registrar (if other than itself) in writing of the numbers of the Notes to be redeemed. Promptly after the calculation of any redemption price that is based on a Make-Whole Premium, the Issuer shall give the Trustee notice thereof and the Trustee shall have no responsibility for calculating such redemption price.

The Issuer may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by an Authorized Person or its Treasurer, instruct the Trustee or any paying agent to call all or any part of the Notes of a particular series for redemption and to give notice of redemption in the manner set forth in this Section, such notice to be in the name of the Issuer or its own name as the Trustee or such paying agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such paying agent, the Issuer shall deliver or cause to be delivered to, or permit to remain with, the Trustee or such paying agent, as the same may be, such Note Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such paying agent to give any notice by mail that may be required under the provisions of this Section.

SECTION 3.03. Presentation and Surrender of Notes.

(a) If the giving of notice of redemption shall have been completed as above provided, the Notes or portions of Notes of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at

 

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the applicable redemption price, together with interest accrued to the date fixed for redemption, and interest on such Notes or portions of Notes shall cease to accrue on and after the date fixed for redemption, unless the Issuer shall default in the payment of such redemption price and accrued interest with respect to any such Note or portion thereof. On presentation and surrender of such Notes on or after the date fixed for redemption at the place of payment specified in the notice, such Notes shall be paid and redeemed at the applicable redemption price for such series, together with interest accrued thereon to the date fixed for redemption (but if the date fixed for redemption is a Scheduled Payment Date, the principal or interest installment payable on such date shall be payable to the registered holder at the close of business on the applicable record date pursuant to Section 2.03).

(b) Upon presentation of any Note of such series which is to be redeemed in part only, the Issuer shall execute, the Trustee shall authenticate and the office or agency where the Note is presented shall deliver to the holder thereof, at the expense of the Issuer, a new Note or Notes of the same series, of authorized denominations in principal amount equal to the unredeemed portion of the Note so presented.

ARTICLE FOUR

Particular Covenants of the Issuer

Unless otherwise provided in a supplemental indenture executed in accordance with Article Nine hereof, the covenants contained in this Article Four shall apply to each series of the Notes. The Issuer covenants and agrees for each series of the Notes as follows:

SECTION 4.01. Payment of Principal, Premium and Interest.

(a) The Issuer will duly and punctually pay or cause to be paid the principal of (and premium, if any) and interest on the Notes of that series at the time and place and in the manner provided herein and established with respect to such Notes. Principal (and premium, if any) and interest will be considered paid on the date due if the paying agent, if other than the Issuer or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay all principal (and premium, if any) and interest then due.

(b) The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal of and (to the extent lawful) interest on the Notes, as well as premium thereon, if any, at the rate equal to 1.0% per annum in excess of the then applicable interest rate on the Notes (without regard to any applicable grace periods).

(c) Any fraction of $1.00 otherwise due on any Note, whether by way of principal, premium or interest, shall be rounded upwards or downwards to the nearest $1.00 (with $0.50 being rounded upwards), notwithstanding anything to the contrary in this Indenture or such Note.

 

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SECTION 4.02. Maintenance of Office or Agency.

So long as any series of the Notes remains Outstanding, and thereafter as provided in Article Eleven, the Issuer agrees to maintain an office or agency in the continental United States of America (which, unless changed, shall be the Corporate Trust Office of the Trustee and which shall be in the City