EXHIBIT 7.1
INDENTURE, dated as of ________, 2003 between PETRO-CANADA, a
corporation duly organized and existing under the laws of Canada (herein
called the "COMPANY"), having its principal office at 000 - 0xx Xxxxxx X.X.,
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (herein called the "TRUSTEE"), having its
Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), which may be convertible into or exchangeable for any securities
of any Person (including the Company), to be issued in one or more series as
provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders (as defined below) thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
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(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(5) words implying any gender shall include all genders; and
(6) the words Subsection, Section and Article refer to the Subsections,
Sections and Articles, respectively, of this Indenture unless otherwise noted.
Certain terms, used principally in Article Three, are defined in that Article.
"ACCELERATED INDEBTEDNESS" has the meaning specified in Section 501.
"ACT" when used with respect to any Holder, has the meaning specified in
Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 1005.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ATTRIBUTABLE DEBT" means, at the time of determination, the then present
value (discounted at the actual rate of interest of such transaction) of the
obligation of the lessee for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended or may,
at the option of the lessor, be extended).
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to act on
behalf of the Trustee pursuant to Section 612 to authenticate Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of Canada,
will, if practicable, be The Globe & Mail, in the case of New York, New York
will, if practicable, be The Wall Street Journal (Eastern Edition), in the case
of the United Kingdom will, if practicable, be The Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg
(Wort), in the English language or in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in
Canada, New York, New York, the United Kingdom or Luxembourg, as applicable.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any
Business Day.
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"BEARER SECURITY" means any Security except a Registered Security.
"BOARD OF DIRECTORS" means either the board of directors of the Company or
any duly authorized committee of that board of directors.
"BOARD RESOLUTION" means a copy of a resolution certified by the Corporate
Secretary or any Assistant Corporate Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day other than Saturday, Sunday or any other day which is not a day on
which commercial banking institutions in that Place of Payment or other location
are closed or required by any applicable law or regulation or executive order to
close.
"CALCULATION PERIOD" has the meaning specified in Section 311.
"CANADIAN TAXES" has the meaning specified in Section 1005.
"CAPITAL LEASE OBLIGATION" means the obligation of a Person, as lessee, to
pay rent or other amounts to the lessor under a lease of property which is
required to be classified and accounted for as a capital lease on the
consolidated balance sheet of such Person in accordance with GAAP.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or its successor.
"COMMISSION" means the U.S. 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, then the
body performing such duties at such time.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY OFFICER" means any one of the Chairman, President, Chief Executive
Officer, Chief Financial Officer, Vice President, Treasurer, Assistant
Treasurer, Controller, Corporate Secretary or Assistant Corporate Secretary of
the Company.
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"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two Company Officers and delivered to
the Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets as
shown on the most recent annual audited or quarterly unaudited consolidated
balance sheet of the Company and computed in accordance with GAAP, including
investments in unconsolidated subsidiaries, after deducting therefrom:
(i) all current liabilities (excluding any current liabilities constituting
Funded Debt by reason of their being renewable or extendible);
(ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other similar intangibles; and
(iii) appropriate adjustments on account of minority interests of other
Persons holding stock of a Subsidiary.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of a Foreign Currency both by
the government of the country which issued such Currency and by a central bank
or other public institution of or within the international banking community for
the settlement of transactions.
"CORPORATE TRUST OFFICE" means the office of the Trustee, at which at any
time its corporate trust business shall principally be administered, which
office at the date hereof is located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000 - Global Finance Unit, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders and the Company).
"COSTS OF ABANDONMENT" means the costs and expenses incurred in the
plugging and abandonment of xxxxx and the decommissioning or removal of
structures or Facilities located on an oil, gas or other mineral property
(including an oil sands property), and the reclamation and clean-up of such
property and related Facilities, interests and surrounding lands whether or not
owned by the Company or any of its Restricted Subsidiaries.
"CORPORATION" includes corporations, associations, companies and business
trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"COVENANT DEFEASANCE" has the meaning specified in Section 1403.
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"CURRENCY" means any currency or currencies or composite currency issued by
the government of one or more countries or by any recognized confederation or
association of such governments.
"CURRENT ASSETS" means current assets as determined in accordance with
GAAP.
"DEBT" means all items which, in accordance with GAAP, would be recorded as
debt in the consolidated financial statements of any Person, and in any event,
including (without duplication):
(i) any obligation for borrowed money including reimbursement obligations
with respect to bankers' acceptances or similar facilities;
(ii) any obligation evidenced by bonds, debentures, notes or other similar
instruments, including, without limitation, any such obligations incurred in
connection with the acquisition of property, assets or businesses;
(iii) any Capital Lease Obligation;
(iv) any reimbursement obligation with respect to letters of credit issued
to secure the payment of any Debt of any Person;
(v) any payment obligation under Financial Instrument Obligations; and
(vi) any guarantee of Debt of another Person.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" or "DEPOSITARY OF SECURITIES" means The Depository Trust
Company, or any successor thereto, or any other Person designated pursuant to
Section 301.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
Currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning specified in
Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(f).
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"EUROCLEAR" means Euroclear Bank S.A./N.A., or its successor as operator of
the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934, as
amended.
"EXCHANGE DATE" has the meaning specified in Section 304.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 301, a New York clearing house bank, designated pursuant to Section 301
or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or
Foreign Currency amounts of principal, and premium, if any, and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer, the Controller, any Vice President
or any Assistant Treasurer of the Company.
"EXCLUDED HOLDER" has the meaning specified in Section 1005.
"EXTENSION NOTICE" has the meaning specified in Section 308.
"EXTENSION PERIOD" has the meaning specified in Section 308.
"FACILITIES" means any drilling equipment, production equipment and
platforms or mining equipment; pipelines, pumping stations and other pipeline
facilities; terminals, warehouses and storage facilities; bulk plants;
production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities; flares, stacks
and burning towers; floatation xxxxx, crushers and ore handling facilities; tank
cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine,
automotive, aeronautical and other similar moveable facilities or equipment;
computer systems and associated programs or office equipment; roads, airports,
docks (including drydocks); reservoirs and waste disposal facilities; sewers;
generating plants (including power plants) and electric lines; telephone and
telegraph lines, radio and other communications facilities; townsites, housing
facilities, recreation halls, stores and other related facilities; and similar
facilities and equipment of or associated with any of the foregoing.
"FINAL MATURITY" has the meaning specified in Section 308.
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"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising under:
(i) interest rate swap agreements, forward rate agreements, floor, cap or
collar agreements, futures or options, insurance or other similar agreements or
arrangements, or any combination thereof, entered into by a Person relating to
interest rates or pursuant to which the price, value or amount payable
thereunder is dependent or based upon interest rates in effect from time to time
or fluctuations in interest rates occurring from time to time;
(ii) currency swap agreements, cross-currency agreements, forward
agreements, floor, cap or collar agreements, futures or options, insurance or
other similar agreements or arrangements, or any combination thereof, entered
into by a Person relating to currency exchange rates or pursuant to which the
price, value or amount payable thereunder is dependent or based upon currency
exchange rates in effect from time to time or fluctuations in currency exchange
rates occurring from time to time; and
(iii) commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar agreements or
arrangements, or any combination thereof, entered into by a Person relating to
one or more commodities or pursuant to which the price, value or amount payable
thereunder is dependent or based upon the price of one or more commodities in
effect from time to time or fluctuations in the price of one or more commodities
occurring from time to time.
"FIRST CURRENCY" has the meaning specified in Section 115.
"FOREIGN CURRENCY" means any Currency other than Currency of the United
States.
"FUNDED DEBT" means all Debt which, by its terms, matures more than 12
months from the date such Debt was incurred, or having a maturity of less than
12 months but by its terms being renewable or extendable, at the sole option of
the obligor, beyond 12 months from the date such Debt was incurred.
"GAAP" means generally accepted accounting principles in Canada in effect
from time to time, unless the Company's most recent audited or quarterly
unaudited financial statements are not prepared in accordance with generally
accepted accounting principles in Canada, in which case GAAP shall mean
generally accepted accounting principles in the United States in effect from
time to time.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, securities which are (i)
direct obligations of the government which issued the Currency in which the
Securities of a particular series are payable or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or
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redeemable at the option of the issuer thereof 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 the 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 or principal of the Government Obligation evidenced by such depository
receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; PROVIDED, HOWEVER, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity at the rate prescribed in such Original Issue Discount Security.
"INTEREST PAYMENT DATE", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"ISSUE DATE" means the date that any series of Securities is first issued
under this Indenture.
"JUDGMENT CURRENCY" has the meaning specified in Section 114.
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"MANDATORY SINKING FUND PAYMENT" has the meaning specified in Section 1201.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (i) for any conversion of Dollars into
any Foreign Currency, the noon (New York, New York time) buying rate for such
Foreign Currency for cable transfers quoted in New York, New York as certified
for customs purposes by the Federal Reserve Bank of New York and (ii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either Xxx Xxxx, Xxx Xxxx, Xxxxxx,
Xxxxxxx or any other principal market for Dollars or such purchased Foreign
Currency, in each case determined by the Exchange Rate Agent. Unless otherwise
specified with respect to any Securities pursuant to Section 301, in the event
of the unavailability of any of the exchange rates provided for in the foregoing
clauses (i) and (ii), the Exchange Rate Agent shall use, in its sole discretion
and without liability on its part, such quotation of the Federal Reserve Bank of
New York as of the most recent available date, or quotations from one or more
major banks in Xxx Xxxx, Xxx Xxxx, Xxxxxx, Xxxxxxx or another principal market
for the Currency in question, or such other quotations as the Exchange Rate
Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any Currency by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such Currency shall be that upon which a non resident issuer of securities
designated in such Currency would purchase such Currency in order to make
payments in respect of such securities.
"MATURITY" means, when used with respect to any Security, the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"NON-RECOURSE DEBT" means at any time Debt incurred to provide funds for or
otherwise finance (directly or indirectly) (i) the purchase price or other
acquisition cost of any property not owned by the Company or a Subsidiary on the
Issue Date, or (ii) costs and expenses incurred after the Issue Date for the
construction, development or installation of, or improvements to, any property,
or (iii) the costs and expenses incurred after the Issue Date in connection with
acquisition, surveying, exploration, drilling, development, extraction,
operation or production relating to or arising in connection with any oil, gas
or other mineral property (including oil sands property), including costs
incurred for the construction, alteration, repair, improvement or operation of
any and all Facilities relating to such property, or to projects, ventures or
other arrangements of which such property forms a part or which relate to such
property, whether or not such Facilities are in whole or in part located (or
from time to time located) at or on such property, and all related costs of
abandonment, PROVIDED that at such time the recourse of the lender thereof
(including any agent, trustee, receiver or other person acting on behalf
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of such lender) in respect of such Debt is limited in all circumstances to (A)
the property that is the subject of the acquisition, construction, development
or other relevant activities referred to in clauses (i), (ii) or (iii) above,
and to the receivables, inventory, equipment, chattel payables, contracts,
intangibles and other assets, rights or collateral connected with such property
and the proceeds thereof, and (B) in the case of any Debt referred to in clause
(iii), any contiguous or associated oil, gas or mineral properties (including
oil sands properties) and any Facilities or other property used or to be used in
connection with any such oil, gas or mineral properties (including oil sands
properties), whether or not such Facilities are located (or located from time to
time) at or on such property, other than recourse (which shall be on an
unsecured basis) against the other property of the Company or any Subsidiary for
a breach of representations and warranties or non-financial covenants made by
such person in connection with such Debt to the extent such representations and
warranties or non-financial covenants are customarily given in similar type
financings.
"NOTICE OF DEFAULT" has the meaning specified in Section 501.
"OFFICERS' CERTIFICATE" means a certificate, which shall comply with this
Indenture, signed by any two Company Officers and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, and who shall be
reasonably acceptable to the Trustee.
"OPTIONAL RESET DATE" has the meaning specified in Section 307.
"OPTIONAL SINKING FUND PAYMENT" has the meaning specified in Section 1201.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OTHER CURRENCY" has the meaning specified in Section 115.
"OUTSTANDING", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities, or portions thereof, for which money in the necessary
amount relating to payment, redemption or repayment at the option of the Holders
has been deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities and any
coupons
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appertaining thereto; PROVIDED that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and 1403,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser (as defined in Article 8 of
the UCC) in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (a) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the maturity
thereof pursuant to Section 502, (b) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar Equivalent of the Foreign Currency,
determined as of the date such Security is originally issued by the Company as
set forth in an Exchange Rate Officer's Certificate delivered to the Trustee, of
the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar Equivalent of the Foreign Currency as of such date of original
issuance of the amount determined as provided in clause (a) above) of such
Security, (c) the principal amount of any Indexed Security that may be counted
in making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (d) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
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"PAYING AGENT" means any Person (including the Company acting as Paying
Agent) authorized by the Company to pay the principal of, or premium, if any, or
interest, if any, on any Securities on behalf of the Company.
"PERMITTED ENCUMBRANCES" means
(i) any Security Interest existing as of the Issue Date;
(ii) any Security Interest existing on the property of any Person when such
Person becomes a Restricted Subsidiary, or arising thereafter pursuant to
contractual commitments entered into prior to and not in contemplation of such
Person becoming a Restricted Subsidiary;
(iii) any Security Interest on the property of any Person which Security
Interest exists at the time such Person is merged into or amalgamated or
consolidated with the Company or a Restricted Subsidiary, or such property is
otherwise acquired by the Company or a Restricted Subsidiary (including by way
of lease), PROVIDED that such Security Interest does not extend to property
owned by the Company or a Restricted Subsidiary prior to such merger,
amalgamation, consolidation or acquisition;
(iv) any Security Interest on property acquired by the Company or a
Restricted Subsidiary after the Issue Date given in connection with a Capital
Lease Obligation;
(v) any Security Interest given in connection with a Sale and Leaseback
Transaction permitted under Section 1008(3);
(vi) any Security Interest in favor of the Company, any Restricted
Subsidiary or any wholly-owned Subsidiary;
(vii) any Security Interest in Current Assets given to secure any Debt
repayable on demand or maturing, including any right of extension or renewal,
within 12 months after the date such Debt is incurred;
(viii) any Security Interest granted (a) on cash or securities issued by
the United States or Canada or any agency or instrumentality of the United
States or Canada or any state or province thereof, as the case may be, or (b) in
the ordinary course of business, in either case in connection with Financial
Instrument Obligations;
(ix) any Security Interest in any Restricted Property in favor of any
federal government or any province, state or territory thereof or any
municipality therein or any political subdivision, department, agency or
instrumentality of any of them to secure the performance of any covenant or
obligation to or in favor of or entered into at the request of such authorities
where such security is required pursuant to any contract, statute or regulation
or with respect to any franchise, grant, license or permit (including related to
periodic payments in connection therewith) or arises by operation of law and
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any defects in title to structures or other facilities arising solely from the
fact that such structures or facilities are constructed or installed on lands
held by the Company under government permits, leases or grants, PROVIDED that
such Security Interest is not given in connection with borrowed money;
(x) any Security Interest in any oil, gas or other mineral property or
products derived from such property to secure obligations incurred or guarantees
of obligations incurred in connection with or necessarily incidental to
commitments of purchase or sale of, or the transportation, storage or
distribution of, such property or the products derived from such property,
PROVIDED that such Security Interest is not given in connection with borrowed
money;
(xi) any Security Interest arising under partnership agreements, oil and
natural gas leases, overriding royalty agreements, net profits agreements,
royalty trust agreements, master limited partnership agreements, farm-out
agreements, division orders, utilization and pooling designations, declarations,
orders and agreements, joint venture agreements, development agreements,
operating agreements, production sales contracts (including security in respect
of take or pay or similar obligations thereunder), area of mutual interest
agreements, natural gas balancing or deferred production agreements, injection,
repressuring and recycling agreements, salt water or other disposal agreements,
seismic or geophysical permits or agreements, which in each of the foregoing
cases is customary in the oil and natural gas business, and other similar
agreements which are customary in the oil and natural gas business, PROVIDED
that such Security Interest is (a) limited to the assets that are the subject of
the relevant agreement and the proceeds of such assets, and (b) not given in
connection with borrowed money;
(xii) any Security Interest (a) securing the purchase price or other
acquisition cost of any property not owned by the Company or a Subsidiary on the
Issue Date or (b) securing costs and expenses incurred after the Issue Date for
the construction, development or installation of, or improvements to, any
property, or (c) securing the costs and expenses incurred after the Issue Date
in connection with surveying, exploration, drilling, development, extraction,
operation or production relating to or arising in connection with any oil, gas
or other mineral property (including oil sands property) or with the acquisition
thereof, including costs incurred for the acquisition, construction, alteration,
repair, improvement or operation of any and all Facilities relating to such
property, or to projects, ventures or other arrangements of which such property
forms a part or which relate to such property, whether or not such Facilities
are in whole or in part located (or from time to time located) at or on such
property, and all related costs of abandonment, or (d) securing Debt created,
issued, incurred or assumed by the Company or any of its Subsidiaries to provide
funds for, or otherwise finance (directly or indirectly), the activities set
forth in clauses (a), (b) and (c) above, if such Debt is incurred prior to,
during or within two years after the completion of acquisition, construction,
development or the other relevant activities referred to in clauses (a), (b) or
(c) above and does not exceed the cost of such acquisition, construction,
development or other activities, as applicable; PROVIDED, HOWEVER, that any such
Security Interest shall be limited to (A) the property that is the subject of
the acquisition, construction, development or other relevant activities referred
to in clauses (a), (b) or (c) above, and to
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the receivables, inventory, equipment, chattel payables, contracts, intangibles
and other assets, rights or collateral connected with such property and the
proceeds thereof, and (B) in the case of any Security Interest referred to in
clause (c), any contiguous or associated oil, gas or mineral properties
(including oil sands properties) and any Facilities or other property, in each
case, used or to be used in connection with any such oil, gas or mineral
properties (including oil sands properties), whether or not such Facilities are
located (or located from time to time) at or on such property;
(xiii) any Security Interest on cash or securities deposited with a trustee
or collateral agent to defease Debt secured by such Security Interest;
(xiv) any Security Interest arising by reason of (a) any judgment, decree
or order of any court, so long as any appropriate legal proceedings which may
have been initiated for the review of such judgment, decree or order shall not
have been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired, or (b) any deposit or
pledge with any surety company or clerk of any court, or in escrow, as
collateral in connection with, or in lieu of, any bond on appeal from any
judgment or decree against the Company or any Subsidiary, or in connection with
other proceedings or actions at law or in equity by or against the Company or
any Subsidiary, PROVIDED that such Security Interest is not given in connection
with borrowed money;
(xv) any Security Interest referred to in the foregoing clauses or this
clause securing any extension, renewal, alteration or replacement of all or part
of any Debt secured by such Security Interest, PROVIDED that:
(a) the principal amount of such Debt is not increased by an amount
exceeding the cost of such extension, renewal, alteration or replacement,
including but not limited to all fees and expenses incurred in connection
therewith; and
(b) the Security Interest is limited to all or part of the property which
secured the Debt prior to it being extended, renewed, altered or replaced,
plus improvements on such property and the proceeds thereof and all rights
associated therewith; and
(xvi) any Security Interest that would otherwise be prohibited, PROVIDED
that the aggregate of all Debt outstanding and secured under this clause and all
Attributable Debt in respect of Sale and Leaseback Transactions entered into
after the Issue Date which were permitted under Section 1008(2) of this
Indenture does not (calculated at the time of the granting of the Security
Interest) exceed an amount equal to 10% of Consolidated Net Tangible Assets.
Any transaction consisting of the sale (including any forward sale) or
other transfer of oil, gas or other minerals, whether in place or when produced,
for a period of time until, or in amount such that, the purchaser will realize a
specified amount of money or minerals or any other interest in property
(commonly characterized as a
15
"production payment"), will not constitute a Security Interest and will not
result in the Company or a Restricted Subsidiary being required to secure
the debt securities.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PLACE OF PAYMENT" means, when used with respect to the Securities of or
within any series, the place or places where the principal of, and premium, if
any, and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"PROPERTY" means all assets and property, both real and personal, of any
Person.
"REDEMPTION DATE", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be redeemed,
in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture, plus accrued and unpaid interest thereon, if any, to the
Redemption Date.
"REGISTERED SECURITY" means any Security registered in the Security
Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Registered Securities of or within any series means the date specified
for that purpose as contemplated by Section 301.
"REPAYMENT DATE" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment pursuant to this
Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
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"REQUIRED CURRENCY" has the meaning specified in Section 114.
"RESET NOTICE" has the meaning specified in Section 307.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee, including any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or assistant trust officer or any other officer of
the Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person's knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a primary
nature located in the United States, Canada or the United Kingdom, and any
facilities located in the United States, Canada or the United Kingdom directly
related to the mining, processing or manufacture of hydrocarbons or minerals, or
any of the constituents thereof, and includes Voting Shares or other interests
of a Restricted Subsidiary which owns such property or facilities, but does not
include (i) any property or facilities used in connection with or necessarily
incidental to the purchase, sale, storage, transportation or distribution of
hydrocarbons or minerals or products derived therefrom, (ii) any property which,
in the opinion of the board of directors of the Company, is not materially
important to the total business conducted by the Company and its Subsidiaries as
an entirety or (iii) any portion of a particular property which, in the opinion
of the board of directors of the Company, is not materially important to the use
or operation of such property.
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of the Company
which owns at the time Restricted Property; PROVIDED, HOWEVER, such term shall
not include a Subsidiary of the Company if the amount of the Company's share of
Shareholders' Equity of such Subsidiary constitutes, at the time of
determination, less than 2% of the Consolidated Net Tangible Assets of the
Company.
"SALE AND LEASEBACK TRANSACTION" means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the
leasing by the Company or a Restricted Subsidiary of any property owned by the
Company or any Subsidiary on the Issue Date.
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture; PROVIDED, HOWEVER, that if at any time there is more than one
Person acting as Trustee under this Indenture, "Securities" with respect to this
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
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"SECURITY INTEREST" means any security by way of an assignment, mortgage,
charge, pledge, lien, encumbrance, title retention agreement or other security
interest whatsoever, howsoever created or arising, whether absolute or
contingent, fixed or floating, perfected or not, but not including any security
interest in respect of a lease which does not create or evidence a Capital Lease
Obligation or any encumbrance that may be deemed to arise solely as a result of
entering into an agreement not in violation of this Indenture to sell or
otherwise transfer property.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SHAREHOLDERS' EQUITY" means shareholders' equity of the Company as shown
on the most recent annual audited or quarterly unaudited consolidated balance
sheet of the Company and computed in accordance with GAAP.
"SIGNIFICANT SUBSIDIARY" means a Restricted Subsidiary that constitutes a
"significant subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Exchange Act.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED MATURITY" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in such
Security or a coupon representing such installment of interest as the fixed date
on which the principal of such Security or such installment of principal or
interest is due and payable, as such date may be extended pursuant to the
provisions of Section 308.
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in Section 307.
"SUBSIDIARY" means any corporation or other Person of which Voting Shares
or other interests carrying more than 50% of the voting rights attached to all
outstanding Voting Shares or other interests are owned, directly or indirectly,
by the Company or by one or more Subsidiaries of the Company, or by the Company
and one or more Subsidiaries of the Company.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; PROVIDED, HOWEVER, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
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"UCC" means the New York uniform commercial code in effect from time to
time.
"UNITED STATES" or "U.S." means, unless otherwise specified with respect to
any Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, any other Person created or organized in or under
the laws of the United States or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"VALUATION DATE" has the meaning specified in Section 312(c).
"VICE PRESIDENT", when used with respect to the Company or the Trustee,
means any vice-president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"VOTING SHARES" means shares of any class of a corporation having under all
circumstances the right to vote for the election of the directors of such
corporation, PROVIDED that, for the purpose of this definition, shares which
only carry the right to vote conditionally on the happening of an event shall
not be considered Voting Shares whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity, computed at the time of
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any written application or written request by the Company to the
Trustee to take any action under any provision of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 1004)
shall include:
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(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has
made such examination or investigation as is necessary to enable him or her to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons may certify of give an opinion as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, a
certificate of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate or opinion of an officer of the Company or of counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of, or representations by, an accountant or firm of accountants in the
employ of the Company, unless such officer or counsel, as the case may be,
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the accounting matters upon which
such certificate or opinion may be based are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Securities of all series or one or more series, as the case may
be, may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agents duly appointed in
writing. If Securities of a series are issuable as Bearer Securities, any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section 104. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to
21
be satisfactory. The Trustee and the Company may assume that such ownership
of any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some
other Person, or (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding.
The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may also be proved in any other
manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other documents provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration - Global Finance Unit, or
22
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company, Attention:
Chief Financial Officer, or such other officer as the Company may designate on
written notice to the Trustee, addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class postage prepaid, to each such Holder affected by such
event, at his or her address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impractical to mail notice
of any event to Holders of Registered Securities when such notice is required to
be given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be
sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given to Holders of Bearer Securities if published in an Authorized
Newspaper in New York, New York and in such other city or cities as may be
specified in such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later than the
latest date, prescribed for the giving of such notice. Any such notice shall be
deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the
23
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company and the
Trustee shall bind their successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York without regard to
principles of conflicts of law. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
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SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking fund
payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment or other location contemplated hereunder,
then (notwithstanding any other provision of this Indenture or of any Security
or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal, or premium, if any, or interest, if any, need not be made
at such Place of Payment or other location contemplated hereunder on such date,
but may be made on the next succeeding Business Day at such Place of Payment or
other location contemplated hereunder with the same force and effect as if made
on the Interest Payment Date or Redemption Date or sinking fund payment date, or
at the Stated Maturity or Maturity; PROVIDED that no additional interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
SECTION 113. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has irrevocably designated and appointed CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CT
CORPORATION") as its authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Securities or this
Indenture that may be instituted in any federal or New York state court located
in the Borough of Manhattan in the City of New York, New York or brought under
federal or state securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), (ii) submits to
the non-exclusive jurisdiction of any such court in any such suit or proceeding,
and (iii) agrees that service of process upon CT Corporation and written notice
of said service to the Company (mailed or delivered to the Company, Attention:
Chief Financial Officer, at its principal office specified in the first
paragraph of this Indenture and in the manner specified in Section 105 hereof),
shall be deemed in every respect effective service of process upon the Company
in any such suit or proceeding. The Company further agrees to take any and all
action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation in full force and effect so long as any of the Securities shall
be outstanding.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
25
The Company hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Indenture or the Securities in any federal or state
court in the State of New York, Borough of Manhattan. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
SECTION 114. CONVERSION OF CURRENCY.
(a) The Company covenants and agrees that the following provisions shall
apply to conversion of currency in the case of the Securities and this
Indenture:
(i) If for the purposes of obtaining judgment in, or enforcing the judgment
of, any court in any country, it becomes necessary to convert into any other
currency (the "JUDGMENT CURRENCY") an amount due or contingently due under the
Securities of any series and this Indenture (the "REQUIRED CURRENCY"), then the
conversion shall be made at the rate of exchange prevailing on the Business Day
before the day on which a final judgment which is not appealable or is not
appealed is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(ii) If there is a change in the rate of exchange prevailing between the
Business Day before the day on which the judgment referred to in (1) above is
given or an order of enforcement is made, as the case may be (or such other date
as a court shall determine), and the date of receipt of the amount due, the
Company shall pay such additional (or, as the case may be, such lesser) amount,
if any, as may be necessary so that the amount paid in the Judgment Currency
when converted at the rate of exchange prevailing on the date of receipt will
produce the amount in the Required Currency originally due.
(b) In the event of the winding-up of the Company at any time while any
amount or damages owing under the Securities and this Indenture, or any judgment
or order rendered in respect thereof, shall remain outstanding, the Company
shall indemnify and hold the Holders of Securities and the Trustee harmless
against any deficiency arising or resulting from any variation in rates of
exchange between (1) the date as of which the equivalent of the amount in the
Required Currency (other than under this Subsection (b)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this Subsection (b) the final date
for the filing of proofs of claim in the winding-up of the Company shall be the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at which
liabilities of the Company may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this
Section shall constitute separate and independent obligations of the Company
from its
26
other obligations under the Securities and this Indenture, shall give rise to
separate and independent causes of action against the Company, shall apply
irrespective of any waiver or extension granted by any Holder or Trustee from
time to time and shall continue in full force and effect notwithstanding any
judgment or order or the filing of any proof of claim in the winding-up of
the Company for a liquidated sum in respect of amounts due hereunder (other
than under Subsection (b) above) or under any such judgment or order. Any
such deficiency as aforesaid shall be deemed to constitute a loss suffered by
the Holders or the Trustee, as the case may be, and no proof or evidence of
any actual loss shall be required by the Company or the applicable
liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any
liquidating distribution.
(d) The term "rate(s) of exchange" shall mean the Bank of Canada noon rate
for purchases on the relevant date of the Required Currency with the Judgment
Currency, as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) and includes any premiums and costs of exchange
payable.
SECTION 115. CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER CURRENCY") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) on the date of determination.
SECTION 116. INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS OF THE
COMPANY EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement contained
in this Indenture, or in any Security, or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future shareholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders as part of the consideration for the issue of the
Securities.
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SECTION 117. CONFLICT WITH THE TRUST INDENTURE ACT.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of
the Trust Indenture Act, through operation of Section 318(c) thereof, such
imposed duties shall control.
SECTION 118. WAIVER OF JURY TRIAL.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 119. FORCE MAJEURE.
In no event shall the Trustee be responsible or liable for any failure or
delay in the performance of its obligations under this Indenture arising out of
or caused by, directly or indirectly, forces beyond its reasonable control,
including without limitation strikes, work stoppages, accidents, acts of war or
terrorism, civil or military disturbances, nuclear or natural catastrophes or
acts of god, and interruptions, loss or malfunctions of utilities,
communications or computer (software or hardware) services.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities
or coupons, as evidenced by their execution of the Securities or coupons. If the
forms of Securities or coupons of any series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Corporate Secretary or an Assistant Corporate
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities or coupons. Any portion of the text of any
Security may be set forth on the reverse thereof, with an appropriate reference
thereto on the face of the Security.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be in
substantially the form set forth in this Article.
The definitive Securities and coupons shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication shall
be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated and referred to in,
and issued under, the within mentioned Indenture.
The Bank of New York,
as Trustee
By _____________________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified and contemplated by Section 301, then, notwithstanding clause (7)
of Section 301 and Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon written
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon written instructions given by
the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to
29
Section 303 or Section 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of, and premium, if any,
and interest, if any, on any Security in permanent global form shall be made to
the Person or Persons specified therein.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, the specific terms of the Securities of such
series, including, but not limited to, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1), (2)
and (20) below), if so provided, may be determined from time to time by the
Company with respect to unissued Securities of the series and set forth in such
Securities of the series when issued from time to time):
(1) the title and the aggregate principal amount of the Securities of the
series (which shall distinguish the Securities of the series from all other
series of the Securities);
(2) any limit on the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906, 1107 or 1305);
30
(3) the date or dates, or the method by which such date or dates will be
determined or extended, on which the Securities of the series may be issued and
on which the principal of, and premium, if any, on the Securities will be
payable;
(4) the rate or rates (whether fixed or variable) at which the Securities
shall bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue, or the
method by which such sate or dates shall be determined, the Interest Payment
Dates on which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates will be determined, and the
basis upon which interest shall be calculated if other than on the basis of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to The Borough
of Manhattan, The City of New York, where the principal of, and premium, if any,
and interest, if any, on the Securities of the series shall be payable, where
any Registered Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for exchange, where
Securities of the series that are convertible or exchangeable may be surrendered
for conversion or exchange, as applicable and, if different than the location
specified in Section 105, the place or places where notices or demands to or
upon the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which Securities of the
series may be redeemed or purchased, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(8) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the terms
and conditions upon which such Securities will be so convertible or
exchangeable;
(9) if payment of the Securities will be guaranteed by any other Person;
(10) the extent and manner, if any, in which payment on or in respect of
the Securities of the series will be secured, or will rank senior, or will be
subordinated to the prior payment of the other liabilities and obligations of
the Company;
(11) if Securities of the series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and/or terms of such certificates,
documents or conditions;
31
(12) any applicable Canadian and U.S. federal income tax consequences;
(13) the obligation, if any, of the Company to redeem, repay or purchase
Securities of the series pursuant to any sinking fund or analogous provision or
at the option of a Holder thereof, and the period or periods within which, the
price or prices at which, the Currency in which, and other terms and conditions
upon which Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(14) if the Securities of the series are to be issued upon the exercise of
warrants, the time, manner and place for such Securities to be authenticated and
delivered;
(15) whether the Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized form
and denomination and the circumstances under which any such exchanges may occur,
if other than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the series
(if permitted by applicable laws and regulations), whether Bearer Securities of
the series may be exchanged for Registered Securities of such series, and the
circumstances under which and the place or places where any such exchanges may
be made and, if Securities of the series are to be issuable in global form, the
identity of any initial depository therefor;
(16) if other than denominations of U.S. $1,000 and any integral multiple
thereof, the denomination or denominations in which any Registered Securities of
the series shall be issuable and, if other than denominations of U.S. $1,000,
the denomination or denominations in which any Bearer Securities of the series
shall be issuable;
(17) if other than Dollars, the Currency in which payment of the principal
of, or premium, if any, or interest, if any, on the Securities of the series
shall be payable or in which the Securities of the series shall be denominated
and the particular provisions applicable thereto in accordance with, in addition
to or in lieu of any of the provisions of Section 312;
(18) whether the amount of payments of principal of, or premium, if any, or
interest, if any, on the Securities of the series may be determined with
reference to an index, formula or other method (which index, formula or method
may be based, without limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
32
(19) whether, under what circumstances and the Currency in which the
Company will pay Additional Amounts as contemplated by Section 1005 on the
Securities of the series to any Holder (including modifications to the
definition of such term) in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of any such
option);
(20) any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to Section 1010) of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(21) whether the principal of, or premium, if any, or interest, if any, on
the Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which such Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange rate
between the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so payable, in each
case in accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(22) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen that shall be applicable
to the Securities of the series;
(23) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(24) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or in the manner in
which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304;
(25) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrences of such events as may be
specified;
(26) if other than The Depository Trust Company, the Person designated as
the Depositary for the Securities of such series;
33
(27) other than the Trustee, the identity of each Security Registrar and/or
Paying Agent;
(28) the designation of the initial Exchange Rate Agent, if any;
(29) the percentage or percentages of principal amount at which the
Securities of the series will be issued; and
(30) any other terms, conditions, rights and preferences (or limitations on
such rights and preferences) relating to the series (which terms shall not be
inconsistent with the requirements of the Trust Indenture Act or the provisions
of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to a Board Resolution (subject to Section 303) and set
forth in such Officers' Certificate or in any such indenture supplemental
hereto. The Company may, from time to time, without notice or consent of the
Holders, create and issue additional Securities of a series so that such
additional Securities may be consolidated and form a single series with the
Securities of the same series initially issued by the Company and shall have the
same terms as to status, redemption and otherwise as the Securities of the same
series originally issued.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 301. With respect to Securities of
any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$1,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by its Chairman, its President, its Chief Executive
Officer, its Chief Financial Officer or a Vice-President, together with any one
of the Controller, the Corporate Secretary, or Assistant Corporate Secretary,
the Treasurer or an Assistant Treasurer. The signature of any of these officers
on the Securities or coupons may be the
34
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series together with any
coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER,
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) that the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any coupons have been established
in conformity with the provisions of this Indenture;
35
(c) that such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Company to the Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights, to general equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of Holders of such
Securities and any coupons;
(d) that all laws and requirements in respect of the execution and delivery
by the Company of such Securities, any coupons and of the supplemental
indentures, if any, have been complied with and that authentication and delivery
of such Securities and any coupons and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate the terms of
this Indenture;
(e) that the Company has the corporate power to issue such Securities and
any coupons, and has duly taken all necessary corporate action with respect to
such issuance; and
(f) that the issuance of such Securities and any coupons will not
contravene the articles of incorporation or amalgamation or by-laws of the
Company or result in any violation of any of the terms or provisions of any law
or regulation or of any indenture, mortgage or other agreement known to such
Counsel by which the Company is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a
36
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
310 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never entitle a Holder to the benefits of
this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as conclusively the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. Such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and PROVIDED
FURTHER, that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
If temporary Securities of any series are issued in global form, any such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London, England office of a depositary or common depositary (the "COMMON
37
DEPOSITARY") or the Depositary, as applicable, for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Clearstream as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301); and PROVIDED FURTHER, that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or
Clearstream. Definitive Securities in bearer form
38
to be delivered in exchange for any portion of a temporary global Security
shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series occurring prior to the
applicable Exchange Date shall be payable to Euroclear and Clearstream on such
Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other form as may be established pursuant to Section 301),
for credit without further interest thereon on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or Clearstream, as the case may be, a certificate dated
no earlier than 15 days prior to the Interest Payment Date occurring prior to
such Exchange Date in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like tenor on
the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal, or premium, if
any, or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream and
not paid as herein provided shall be returned to the Trustee immediately prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
the Corporate Trust Office of the Trustee and in any other office or agency
of the Company in a Place of Payment being herein sometimes collectively
referred to as the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby
39
initially appointed as security registrar (the "SECURITY REGISTRAR") for the
purpose of registering Registered Securities and transfers of Registered
Securities as herein provided. The Company shall have the right to remove and
replace from time to time the Security Registrar for any series of
Securities; PROVIDED, THAT, no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of
Registered Securities shall have been appointed by the Company and shall have
accepted such appointment by the Company. In the event that the Trustee shall
not be or shall cease to be the Security Registrar with respect to a series
of Securities, it shall have the right to examine the Security Register for
such series at all reasonable times. There shall be only one Security
Register for such series of Securities.
Upon surrender for registration of transfer of any Registered Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If, but only if, expressly permitted in or pursuant to the applicable Board
Resolution and, subject to Section 303, set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as contemplated
by Section 301, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located
40
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like
tenor after the close of business at such office or agency on (i) any Regular
Record Date and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment
Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other Depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; PROVIDED, HOWEVER, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and PROVIDED FURTHER, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any
41
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record
Date and before the opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before
the opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed
date for payment, as the case may be, in respect of such Registered Security,
but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance
with the provisions of this Indenture.
If at any time the Depositary for Securities of a series notifies the
Company that it is unwilling, unable or no longer qualifies to continue as
Depositary for Securities of such series or if at any time the Depositary for
Securities for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to the Securities for such
series. If a successor to the Depositary for Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company's election pursuant to
Section 301 shall no longer be effective with respect to the Securities for such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Securities of such
series, will authenticate and deliver Securities of such series in definitive
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the global Security or Securities
representing such series in exchange for such global Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive registered
form, in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Securities to the Persons in whose names such
Securities are so registered.
42
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities of
that series under Section 1103 or 1203 and ending at the close of business on
(a) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (b) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor; PROVIDED that such Registered Security shall be immediately
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
43
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a protected purchaser (as defined in Article 8 of the UCC), the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security for which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; PROVIDED, HOWEVER, that payment of principal of,
and premium, if any, and interest, if any, on Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company 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 expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Company, whether or not the mutilated, destroyed, lost or
stolen Security and its coupons, if any, or the mutilated, destroyed, lost or
stolen coupon shall be at any time enforceable by anyone, and the Holders of
such Security shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this
Indenture with respect to particular Securities or generally, are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
44
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, if any, on any Registered Security which
is payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of the principal of, and premium, if any, on, and interest, if any,
on any Registered Security may at the Company's option be paid by (i) mailing or
delivering a check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 309, to the address of such
Person as it appears on the Security Register or (ii) wire transfer to an
account of the Person entitled to receive such payment located in the United
States maintained by the payee of a Holder at $1,000,000 or more in aggregate
principal amount of the Securities of such series (with wire transfer
instructions provided to the Trustee not less than 15 days prior to payment of
interest by wire transfer); PROVIDED FURTHER, that principal paid in relation to
any Security redeemed at the option of the Company pursuant to Article Eleven,
or paid at Maturity, shall be paid to the Holder of such Security only upon
presentation and surrender of such Security to such office or agency referred to
in this Section 307(a).
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest, if any, may be made, in the
case of a Bearer Security, by transfer to an account located outside the United
States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Clearstream with respect to
that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "DEFAULTED INTEREST")
may be paid by the Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Securities of such series (or their
45
respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit on or 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 Interest as in
this clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days and
not 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 Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given in the manner provided in Section 106, not less than 10
days prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so given,
such Defaulted Interest shall be paid to the Persons in whose name the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "OPTIONAL RESET
DATE"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the "RESET
NOTICE") indicating whether the Company has elected to reset the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to
46
the Stated Maturity Date of such Security (each such period a "SUBSEQUENT
INTEREST PERIOD"), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may
occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the manner provided for in Section 106,
notice of such higher interest rate (or such higher spread or spread multiplier,
if applicable) to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities
have not tendered such Securities for repayment (or have validly revoked any
such tender) pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of the Holders except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "EXTENSION PERIOD") up to but not beyond the date (the "FINAL MATURITY") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such
47
Security in effect prior to the exercise of such option (the "ORIGINAL STATED
MATURITY"). If the Company exercises such option, the Trustee shall transmit,
in the manner provided for in Section 106, to the Holder of such Security not
later than 40 days prior to the Original Stated Maturity a notice (the
"EXTENSION NOTICE") indicating (i) the election of the Company to extend the
Stated Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if
any, applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of
the Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as
described in the next paragraph, such Security will have the same terms as
prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest rate to
the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
If the Company extends the Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must
follow the procedures set forth in Article Thirteen for repayment at the option
of Holders, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 days prior to the Original Stated
Maturity and except that, if the Holder has tendered any Security for repayment
pursuant to an Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payment of
principal of, and premium, if any, and (subject to Sections 305 and 307)
interest, if any, on such Security and for all other purposes whatsoever (except
for determining whether the payment of Additional Amounts is required), whether
or not such Security be overdue, and none of the Company, the Trustee or any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Trustee and any agent of the Company or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the
48
absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupons be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Depositary for Securities may be treated by the Company, the Trustee,
and any agent of the Company or the Trustee as the owner of such global Security
for all purposes whatsoever (except for determining whether the payment of
Additional Amounts is required). None of the Company, the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
global Security or impair, as between such depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such global Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment, redemption, repayment
at the option of the Holder, registration of transfer or exchange or for credit
against any current or future sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities and
coupons so delivered to the Trustee shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Company unless
by Company Order the Company shall direct that cancelled Securities be returned
to it.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with respect
to any Securities, interest, if any, on the Securities shall be computed on the
basis of a
49
360-day year of twelve 30-day months. Solely for the purposes of the Interest
Act (Canada), the yearly rate of interest to which interest calculated under
a Security for a period of less than one year on the basis of a year of 360
days consisting of twelve 30-day periods (the "CALCULATION PERIOD") is
equivalent is such rate of interest multiplied by a fraction of which (i) the
numerator is the product of (a) the actual number of days in the year
commencing on the first day of such period, multiplied by (b) the sum of (y)
the product of 30 multiplied by the number of complete months elapsed in such
period and (z) the actual number of days elapsed in any incomplete month in
such period; and (ii) the denominator is the product of (a) 360 multiplied by
(b) the actual number of days in such period.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES.
(a) With respect to Registered Securities of any series not permitting the
election provided for in paragraph (b) below or the Holders of which have not
made the election provided for in paragraph (b) below, and with respect to
Bearer Securities of any series, except as provided in paragraph (d) below,
payment of the principal of, and premium, if any, and interest, if any, on any
Registered Security or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the case may
be, is payable. The provisions of this Section 312 may be modified or superseded
with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Registered
Securities of any series that Holders shall have the option, subject to
paragraphs (d) and (e) below, to receive payments of principal of, or premium,
if any, or interest, if any, on such Registered Securities in any of the
Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 312(a). The Trustee shall notify the
Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
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(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of, and premium, if any, and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in such
Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such series shall have elected to be paid in
another Currency as provided in paragraph (b) above. If the election referred to
in paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency payments to be made on such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar or Foreign Currency amount receivable by
Holders of Registered Securities who have elected payment in a Currency as
provided in paragraph (b) above shall be determined by the Company on the basis
of the applicable Market Exchange Rate in effect on the third Business Day (the
"VALUATION DATE") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of, and premium, if any, and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"CONVERSION DATE"), the Dollar shall be the Currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee and by the Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) above.
(f) The "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent
51
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
For purposes of this Section 312, "ELECTION DATE" shall mean the date for
any series of Registered Securities as specified pursuant to clause (21) of
Section 301 by which the written election referred to in paragraph (b) above may
be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency and the Market Exchange Rate as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee and all Holders of such Securities denominated or payable
in the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee of any such decision or determination.
In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee and to the Exchange Rate
Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date.
The Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Company and the Exchange Rate Agent and
shall not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the Exchange Rate
Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 301 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Currency into the
applicable payment Currency for the payment of principal, and premium, if any,
and interest, if any, pursuant to Section 312.
(b) The Company shall have the right to remove and replace from time to
time the Exchange Rate Agent for any series of Securities. No resignation of the
Exchange Rate Agent and no appointment of a successor Exchange Rate Agent
pursuant to this Section shall become effective until the acceptance of
appointment by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Company and the Trustee.
52
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of
that or those series (it being understood that any such successor Exchange Rate
Agent may be appointed with respect to the Securities of one or more or all of
such series and that, unless otherwise specified pursuant to Section 301, at any
time there shall only be one Exchange Rate Agent with respect to the Securities
of any particular series that are originally issued by the Company on the same
date and that are initially denominated and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Company Request cease to be of further effect
with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto and
any right to receive Additional Amounts as contemplated by Section 1005) and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series
when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Xxxxxxx 000, (xx) Securities
and coupons of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Xxxxxxx 000, (xxx) coupons
appertaining to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in
Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust with the Trustee or
any Paying Agent or segregated and held in trust by the Company and
thereafter repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable; or
53
(ii) will become due and payable at their Stated Maturity within
one year; or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company;
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the Currency in which the Securities of
such series are payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal, and premium, if any, and interest, if any,
to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company in respect of such series; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 612 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal, and premium, if
any, and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
54
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to Section 301 of this Indenture:
(1) default in the payment of the principal of, or premium, if any, on, any
Security when it becomes due and payable; or
(2) default in the payment of any interest on any Security of that series,
or any related coupon, when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(3) default in observing or performing any of the covenants contained in
Sections 801, 802 or 803 of this Indenture and continuance of such default for a
period of 15 days; or
(4) default in the performance, or breach, of any applicable covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in the performance of which, or the breach of which, is specifically
dealt with in paragraphs (1), (2) and (3) above), and continuance of such
default or breach for a period of 90 days after the receipt by the Company of
written notice specifying such default or breach, and requiring it to be
remedied and stating that such notice is a "NOTICE OF DEFAULT" hereunder (i) to
the Company (attention of the General Counsel to the Company via facsimile, with
a hard copy then sent, by registered or certified mail) by the Trustee or (ii)
to the Company (in the same manner) and the Trustee by the Holders of at least
25% in principal amount of all Outstanding Securities of any series affected
thereby; or
(5) default in the performance of any covenant of the Company or any
Restricted Subsidiary contained in any instrument (other than this Indenture)
under which Debt (other than Non-Recourse Debt) is created or issued if such
Debt has an outstanding principal amount in excess of the greater of U.S.$75
million and 2% of Shareholders' Equity at the time of default and the holders of
such Debt, or a trustee, if any, for those holders, declare such Debt to be due
and payable prior to the stated maturity of such Debt, and such acceleration
shall not be rescinded or annulled, or such default shall not be remedied or
cured, whether by payment or otherwise, or waived by the holders of such
accelerated Debt within a period of seven days after such Debt has been
accelerated (or,
55
if such acceleration is the result of an event of default which is not
related to the failure to pay principal or interest, within 30 days after
such Debt has been accelerated); or
(6) the entry of a decree or order by a court having jurisdiction in the
premises adjudging the Company or a Significant Subsidiary a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or a
Significant Subsidiary under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other applicable insolvency
law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or a Significant Subsidiary or of any
substantial part of the property of the Company or a Significant Subsidiary, or
ordering the winding up or liquidation of the affairs of the Company or a
Significant Subsidiary, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; PROVIDED that the appointment
by or on behalf of a lender or holder of Non-Recourse Debt of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) in
respect of the property to which such lender or holder is entitled to have
recourse pursuant to the terms of such Non-Recourse Debt shall not be an event
constituting an "Event of Default"; or
(7) the institution by the Company or a Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by the
Company or a Significant Subsidiary to the institution of bankruptcy or
insolvency proceedings against the Company or a Significant Subsidiary, or the
filing by the Company or a Significant Subsidiary of a petition or answer or
consent seeking reorganization or relief under the BANKRUPTCY AND INSOLVENCY ACT
(Canada), the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other
applicable insolvency law, or the consent by the Company or a Significant
Subsidiary to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or a Significant Subsidiary or of any substantial part
of the property of the Company or a Significant Subsidiary, or the making by the
Company or a Significant Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or a Significant Subsidiary in
writing of its inability to pay its debts generally as they become due; PROVIDED
that the appointment by or on behalf of a lender or holder of Non-Recourse Debt
of a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) in respect of the property to which such lender or holder is entitled
to have recourse pursuant to the terms of such Non-Recourse Debt shall not be an
event constituting an "Event of Default"; or
(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501 with respect to Securities
of any series at the time Outstanding occurs and is continuing, unless the
principal of, and premium, if any, on, all of the Securities of such series
shall have already become due
56
and payable, then in every such case the Trustee may, in its discretion, and
shall upon request in writing made by the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of all affected
series, subject to any subordination provisions thereof, declare the
principal amount of, and premium, if any, on, (or, if the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that
series) all of the Securities of that series and the interest accrued thereon
and all other money, if any, owing under the provisions of this Indenture in
respect of such Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified portion thereof) shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all affected series, as the case may be) has
been made, but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all affected series, as the case may be), by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue interest, if any, on all Outstanding Securities of that
series (or of all series, as the case may be) and any related coupons;
(B) all unpaid principal of, and premium, if any, on, any Outstanding
Securities of that series (or of all series, as the case may be) which has
become due otherwise than by such declaration of acceleration, and interest
on such unpaid principal, and premium, if any, at the rate or rates
prescribed therefor in such Securities;
(C) to the extent that payment of such interest is lawful, interest on
overdue interest, if any, at the rate or rates prescribed therefor in such
Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series (or of
all affected series, as the case may be), other than the non-payment of amounts
of principal of, or premium, if any, on, or interest on Securities of that
series (or of all series, as the case may be) which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
57
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration of
acceleration in respect of the Securities because of an Event of Default
specified in Section 501(5) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30 day period
which has not been cured or waived during such period.
SECTION 503. COLLECTION OF DEBT AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of interest on any
Security and any related coupon when such interest becomes due and payable and
such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of, or premium, if any,
on, any Security at the Maturity thereof;
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal, and premium, if any,
and interest, if any, and interest on any overdue principal, and premium, if
any, and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such
58
series (or of all series, as the case may be) by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or the property of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of principal, and
premium, if any, or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be specified in
the terms of such series, and interest, if any, owing and unpaid in respect of
the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of
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the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or premium,
if any, or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of,
and premium, if any, and interest, if any, on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal, and premium, if
any, and interest, if any, respectively; and
THIRD: The balance, if any, to the Company or to such Person or Persons as
the Company Directs.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, the Securities of any series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series
affected by such Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of those series (voting as one class) affected by such
Event of Default described in Section 501, shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60 day period by the Holders of a majority or more in
principal amount of the Outstanding Securities of those series in the case of
any Event of Default described in Section 501;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in Section 501, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST, IF ANY.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Fourteen) and in
such Security, of the principal of, and premium, if any, and (subject to Section
307) interest, if any, on, such Security or payment of such coupon on the
respective Stated Maturities expressed in such Security or coupon (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders of Securities and
coupons shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Article Six, with respect to the Securities of any series, the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, relating to or arising
under Section 501, PROVIDED that in each case
(1) such direction shall not be in conflict with any rule of law or with
this Indenture;
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(3) the Trustee need not take any action which might involve it in personal
liability or be unjustly prejudicial to the Holders of Securities of such series
not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series (or of all affected
series, as the case may be) may on behalf of the Holders of all the Securities
of such series waive any past default described in Section 501, and its
consequences, except a default
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(1) in respect of the payment of the principal of, or premium, if any, or
interest, if any, on any Security or any related coupon; or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder, by acceptance of a
Security, shall be deemed to have agreed that, in any suit for the enforcement
of any right or remedy under this Indenture, or any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, any court may, in its
discretion, require the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; PROVIDED,
HOWEVER, that the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate Securities representing more than 10% of the
aggregate principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of any
installment of interest on any Security on or after the Stated Maturity thereof
expressed in such Security or for the enforcement of the payment of the
principal of such Security at the Stated Maturity therefore.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with respect
to the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the principal of, or premium, if any, or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders of Securities of such series and any related coupons;
and PROVIDED FURTHER, that in the case of any Default of the character specified
in Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof.
SECTION 602. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default and after
the curing of all Events of Default that may have occurred, shall undertake to
perform with respect to the Securities of any series, such duties and only such
duties as are specifically set forth in this Indenture, and no implied covenants
shall be read into this Indenture against the Trustee. If an Event of Default
has occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
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(B) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture and the Trust Indenture Act; but in the case of any such
certificates or opinions that by any provision hereof or Section 314 of the
Trust Indenture Act are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture (but need
not confirm or investigate the accuracy of mathematical calculations or
other facts stated therein);
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of
the Securities of any series at the time Outstanding relating to the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee under
this Indenture; and
(iv) notwithstanding anything contained herein to the contrary,
subject to the provisions of Sections 315(a) through 315(d) of the Trust
Indenture Act, the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee, shall be subject to the provisions of this Section
602.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of the Trust
Indenture Act:
(1) the Trustee may, in the absence of bad faith on its part, conclusively
rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
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(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(4) before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities of any series or any related coupons pursuant to this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a Default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture;
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(10) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder;
and
(11) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent. A Trustee that has resigned or was removed shall remain subject to
Section 311(a) of the Trust Indenture Act.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Trustee and the Company shall from time to time agree in writing for all
services
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rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, damage, claims,
liability or expense (including, without limitation, the reasonable compensation
and the expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, the performance
of its duties hereunder and/or the exercise of its rights hereunder, including
the costs and expenses of defending itself against any claim (whether asserted
by the Company or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Company, the Trustee shall have a claim prior to the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of, or premium, if any, or interest, if
any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection with any
Event of Default specified in Sections 501(6) or 501(7), the expenses (including
reasonable charges and expenses of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture, the payment of the Securities and the resignation or removal of the
Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under Section 310(a)(1) of the Trust Indenture Act, shall have a
combined capital and surplus (together with that of its parent) of at least
$50,000,000 and shall have its Corporate Trust Office in New York, New York to
the extent there is such an institution eligible and willing to serve. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this
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Section, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall acquire any conflicting interest as defined in
Section 310(b) of the Trust Indenture Act and fail to comply with the provisions
of Section 310(b)(i) of the Trust Indenture Act; or
(2) the Trustee shall fail to comply with the provisions of Section 310(b)
of the Trust Indenture Act after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security for at least six
months; or
(3) the Trustee shall cease to be eligible under Section 608 and shall fail
to resign after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months; or
(4) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of such Trustee or of its property shall be
appointed or any public officer shall take charge or control of such Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, (1) the Company may remove the Trustee with respect to
all Securities or the Securities of such series, or (2) subject to Section
315(e) of the Trust
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Indenture Act, any Holder who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself or herself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities of such series and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself or herself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to the Holders
of Securities of such series in the manner provided for in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued pursuant
to this Indenture, the terms "Indenture" and "Securities" shall have the
meanings specified in the provisos to the respective definitions of those terms
in Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation
71
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED that such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities. In case any of the Securities shall not have
been authenticated by such predecessor Trustee, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder
or in the name of the successor Trustee. In all such cases such certificates
shall have the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee; PROVIDED, HOWEVER, that the
right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 612. AUTHORIZATION OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee may
authorize an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Securities 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. Any such authorization shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section 612,
the combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section 612, it shall resign
immediately in the manner and with the effect specified in this Section 612.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED that such corporation shall be otherwise eligible
under this Section 612, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 612, the Trustee may authorize a successor
Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such authorization to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Any successor Authenticating Agent upon acceptance
of its authorization hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
authorized unless eligible under the provisions of this Section 612.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 612.
If an authorization with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated and referred to in,
and issued under, the within mentioned Indenture.
The Bank of New York,
as Trustee
By ___________________________________
as Authenticating Agent
By ___________________________________
Authorized Signatory
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SECTION 613. APPOINTMENT OF CO-TRUSTEE.
It is the purpose of this Indenture that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in
case of the enforcement thereof on Default, or in the case the Trustee deems
that by reason of any present or future law of any jurisdiction it may not
exercise any of the powers, rights or remedies herein granted to the Trustee or
hold title to the properties, in trust, as herein granted or take any action
which may be desirable or necessary in connection therewith, it may be necessary
that the Trustee appoint an individual or institution as a separate or
co-trustee. The following provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction is incapable of
exercising such powers, rights and remedies and every covenant and obligation
necessary to the exercise thereof by such separate or co-trustee shall run to
and be enforceable by either of them.
Should any instrument in writing from the Company be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Company; provided, that
if an Event of Default shall have occurred and be continuing, if the Company
does not execute any such instrument within fifteen (15) days after request
therefor, the Trustee shall be empowered as an attorney-in-fact for the Company
to execute any such instrument in the Company's name and stead. In case any
separate or co-trustee or a successor to either shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
Every separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights and powers, conferred or imposed upon the Trustee shall be
conferred or imposed upon and may be exercised or performed by such separate
trustee or co-trustee; and
(ii) No trustee hereunder shall be personally liable by reason of any act
or omission of any other trustee hereunder.
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Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Indenture and the conditions
of this Article.
Any separate trustee or co-trustee may at any time appoint the Trustee as
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Indenture on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successors trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee (1) not
more than 15 days after each Regular Record Date a list, in such form as the
Trustee may reasonably require, of the names and addresses of Holders as of such
Regular Record Date; PROVIDED, HOWEVER, that the Company shall not be obligated
to furnish or cause to be furnished such list at any time that the list shall
not differ in any respect from the most recent list furnished to the Trustee by
the Company and at such times as the Trustee is acting as Security Registrar for
the applicable series of Securities and (2) at such other times as the Trustee
may request in writing within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished.
SECTION 702. PRESERVATION OF LIST OF NAMES AND ADDRESSES OF HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
contained in the most recent list furnished to it as provided in Section 701 and
as to the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar for the applicable series of Securities (if acting in such
capacity).
The Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished.
Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
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SECTION 703. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that none of the Company or the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
SECTION 704. REPORTS BY TRUSTEE.
(a) Within 60 days after October 15 of each year commencing with the first
October 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit to the Holders of Securities, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such October 15 if required by Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of such report shall, at the time of such transmission to the
Holders, be filed by the Trustee with the Company (Attention: General Counsel),
with each securities exchange upon which any of the Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the Trustee
promptly in writing when the Securities become listed on any securities exchange
and of any delisting thereof.
SECTION 705. REPORTS BY THE COMPANY.
The Company shall:
(a) furnish to the Trustee, within 30 days after the Company is required to
file with or furnish to the same with the Commission, copies, which may be in
electronic format, of the annual and quarterly reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act;
(b) file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations;
(c) notwithstanding that the Company may not remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, or otherwise
report
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on an annual and quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations promulgated by the
Commission, the Company shall furnish to the Trustee:
(1) within the time periods required for the filing of annual information
forms and annual financial statements (or similar annual filings) by the
Canadian securities regulatory authorities, the information required to be
provided or incorporated by reference in an annual information form, annual
financial statement or similar annual filing under the laws of Canada or any
province thereof to security holders of a corporation with securities listed on
the Toronto Stock Exchange, whether or not the Company has any of its securities
listed on such exchange; and
(2) within the time periods required for the filing of quarterly reports by
the Canadian securities regulatory authorities, the information required to be
provided in quarterly reports under the laws of Canada or any province thereof
to security holders of a company with securities listed on the Toronto Stock
Exchange, whether or not the Company has any of its securities listed on such
exchange.
Such reports, to the extent permitted by the rules and regulations of the
Commission, will be prepared in accordance with Canadian disclosure requirements
and GAAP; PROVIDED, HOWEVER, that the Company shall not be obligated to file
such reports with the Commission if the Commission does not permit such filings;
and
(d) transmit to all Holders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, within 30 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (a) and (b)
of this Section as may be required by rules and regulations prescribed from time
to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS
SECTION 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate or amalgamate with or merge into or
enter into any statutory arrangement with any other corporation, or, directly
or indirectly, convey, transfer or lease all or substantially all of its
property to any Person, unless:
(1) the entity formed by or continuing from such consolidation or
amalgamation or into which the Company is merged or with which the Company
enters into such statutory arrangement or the Person which acquires or leases
all or substantially all of the Company's property (a) shall be a corporation,
partnership or trust organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia or the laws of
Canada or any province or territory thereof, or, if such consolidation,
amalgamation, merger, statutory arrangement or other transaction would not
impair the rights of Holders, in any other jurisdiction, PROVIDED that if such
successor entity is organized under the laws of a jurisdiction other than the
Xxxxxx Xxxxxx,
00
any state thereof or the District of Columbia, or the laws of Canada or any
province or territory thereof, the successor entity assumes the Company's
obligations under the Securities and this Indenture to pay Additional
Amounts, substituting the name of such successor jurisdiction for Canada in
each place that Canada appears in Section 1005, (b) shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, or shall assume by operation of law, the
Company's obligation for the due and punctual payment of the principal of,
and premium, if any, and interest, if any, on all the Securities and the
performance and observance of every covenant of this Indenture on the part of
the Company to be performed or observed and (c) shall submit to the
jurisdiction of United States federal and state courts in accordance with
Section 113;
(2) immediately after giving effect to such transaction, no Default, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(3) the Company or such Person shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
amalgamation, statutory arrangement, consolidation, merger, conveyance, transfer
or lease and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
This Section 801 shall only apply to a merger, amalgamation, statutory
arrangement or consolidation in which the Company is not the surviving
corporation and to conveyances, leases and transfers by the Company as
transferor or lessor.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any amalgamation or consolidation by the Company with or merger by the
Company into any other corporation or any conveyance, transfer or lease of all
or substantially all of the property of the Company to any Person in accordance
with Section 801, the successor Person formed by such amalgamation or
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and in the event of any such conveyance or transfer, the Company (which term
shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
SECTION 803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such amalgamation, consolidation or statutory arrangement of
the Company with or merger of the Company into any other corporation, or upon
any conveyance, lease or transfer of all or substantially all of the property of
the Company to
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any other Person, any Restricted Property of the Company would thereupon
become subject to any Security Interest, then unless such Security Interest
could be created pursuant to Section 1006 without equally and ratably
securing the Securities, the Company, prior to or simultaneously with such
consolidation, amalgamation, statutory arrangement, merger, conveyance, lease
or transfer, will, as to such Restricted Property, secure the Securities
Outstanding hereunder (together with, if the Company shall so determine, any
other indebtedness of the Company now existing or hereafter created which is
not subordinate to the Securities) equally and ratably with (or prior to) the
indebtedness which upon such consolidation, amalgamation, merger, statutory
arrangement, conveyance, lease or transfer is to become secured as to such
Restricted Property by such Security Interest, or will cause such Securities
to be so secured; PROVIDED that, for the purpose of providing such equal and
ratable security, the principal amount of Original Issue Discount Securities
and Indexed Securities shall mean that amount which would at the time of
making such effective provision be due and payable pursuant to Section 502
and the terms of such Original Issue Discount Securities and Indexed
Securities upon a declaration of acceleration of the Maturity thereof, and
the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said amount changes over time pursuant
to the terms of such Original Issue Discount Securities and Indexed
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities and any related coupons (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are being included solely for the benefit of such
series); or
79
(4) to add to or change any of the provisions of this Indenture to provide
that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; PROVIDED that any
such action shall not materially adversely affect the interests of the Holders
of Securities of any series or any related coupons; or
(5) to change or eliminate any of the provisions of this Indenture;
PROVIDED that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities pursuant to the requirements of Section 803 or
1006 or otherwise; or
(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 610(b); or
(9) to close this Indenture with respect to the authentication and delivery
of additional series of Securities; or
(10) to supplement any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the defeasance and discharge of
any series of Securities pursuant to Sections 401, 1402 and 1403; PROVIDED that
any such action shall not materially adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities; or
(11) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein; PROVIDED such action
shall not materially adversely affect the interests of the Holders of Securities
of any series and any related coupons.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities of a series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture which
80
affect such series of Securities or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security of such series,
(1) change the Stated Maturity of the principal of, or premium, if any, or
any installment of interest on any Security of such series, or reduce the
principal amount thereof, or premium, if any, or the rate of interest, if any,
thereon, or change any obligation of the Company to pay Additional Amounts
contemplated by Section 1005 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security of such series that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any Holder of any
Security of such series, or change any Place of Payment where, or the Currency
in which, any Security of such series or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
or repayment at the option of the Holder, on or after the Redemption Date or
Repayment Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301 herein; or
(2) reduce the percentage in principal amount of the Outstanding Securities
of such series required for any such supplemental indenture, or the consent of
whose Holders is required for modification or amendment of the provisions of
this Indenture or any waiver of compliance with certain provisions of this
Indenture which affect such series or certain defaults applicable to such series
hereunder and their consequences provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting with respect to Securities of
such series; or
(3) modify any of the provisions of this Section, Section 513 or Section
1010, except to increase any such percentage or to provide that certain other
provisions of this Indenture which affect such series cannot be modified or
waived without the consent of the Holder of each Outstanding Security of such
series.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officers' Certificate collectively stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture and that all
conditions precedent herein provided for relating to such transaction have been
complied with. The Trustee may, but shall not be obligated to, enter into any
such supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of, and premium, if any, and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for any series of Securities
an office or agency where Securities of that series may be presented or
surrendered for payment, where Securities of that series may be surrendered for
registration of transfer or exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company
will maintain (a) in New York, New York an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served and where Bearer Securities of that series and related
coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (b) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment;
PROVIDED, HOWEVER, that, if the Securities of that series are listed on any
securities exchange located outside the United States and such securities
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United States
so long as the Securities of that series are listed on such exchange, and (c)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States, an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible and
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exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish, in writing, the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, United Kingdom, and the
Company hereby appoints the same as its agents to receive such respective
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, HOWEVER, that, if
the Securities of a series are payable in Dollars, payment of principal of, and
premium, if any, and interest, if any, on any Bearer Security shall be made at
the office of the Company's Paying Agent in New York, New York if (but only if)
payment in Dollars of the full amount of such principal, premium or interest, as
the case may be, at all offices or agencies outside the United States maintained
for such purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind any
such designation; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the Corporate Trust Office in New York, New York and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such city
and as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of this
Indenture, then the Company will
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maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities and any related coupons, it will, on or before each
due date of the principal of, or premium, if any, or interest, if any, on any of
the Securities of that series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal of, or
premium, if any, or interest, if any, on Securities of such series so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee in writing of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, prior to or on each due date of the
principal of, or premium, if any, or interest, if any, on any Securities of that
series, deposit with a Paying Agent a sum (in the Currency described in the
preceding paragraph) sufficient to pay the principal, or premium, if any, or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of, and
premium, if any, and interest, if any, on Securities of such series in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any payment
of principal of, or premium, if any, or interest, if any, on the Securities of
such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the
85
Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of, or premium, if any, or interest, if any, on any
Security of any series, or any coupon appertaining thereto, and remaining
unclaimed for two years (or such shorter period as may be specified in the
applicable abandoned property statutes) after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year, an Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Company Officers with a view
to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to such Company
Officers signing such certificate, that to the best of their knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture (or,
if a Default or Event of Default has occurred, describing all such Defaults or
Events of Default of which such Company Officers may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and that
to the best of their knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of, or premium, if any, or
interest, if any, on the Securities is prohibited or if such event has occurred,
a description of the event and what action the Company is taking or proposes to
take with respect thereto.
So long as any of the Securities are outstanding, the Company will deliver
to the Trustee, forthwith upon any Company Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
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SECTION 1005. ADDITIONAL AMOUNTS.
(a) Unless otherwise provided pursuant to Section 301, all payments made by
or on behalf of the Company under or with respect to the Securities of any
series will be made free and clear of and without withholding or deduction for
or on account of any present or future tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of Canada
or of any province or territory thereof or by any authority or agency therein or
thereof having power to tax (hereinafter "CANADIAN TAXES"), unless the Company
is required to withhold or deduct Canadian Taxes by law or by the interpretation
or administration thereof. If the Company is so required to withhold or deduct
any amount for or on account of Canadian Taxes from any payment made under or
with respect to the Securities, the Company will pay to each Holder as
additional interest such additional amounts ("ADDITIONAL AMOUNTS") as may be
necessary so that the net amount received by each Holder after such withholding
or deduction (and after deducting any Canadian Taxes on such Additional Amounts)
will not be less than the amount the Holder would have received if such Canadian
Taxes had not been withheld or deducted. However, no Additional Amounts will be
payable with respect to a payment made to a Holder (such Holder, an "EXCLUDED
HOLDER") in respect of the beneficial owner thereof:
(1) with which the Company does not deal at arm's length for the purposes
of the INCOME TAX ACT (Canada) at the time of the making of such payment;
(2) which is subject to such Canadian Taxes by reason of the Holder being a
resident, domicile or national of, or engaged in business or maintaining a
permanent establishment or other physical presence in or otherwise having some
connection with Canada or any province thereof otherwise than by the mere
holding of Securities or the receipt of payments thereunder;
(3) which is subject to such Canadian Taxes by reason of the Holder's
failure to comply with any certification, identification, information,
documentation or other reporting requirements if compliance is required by law,
regulation, administrative practice or an applicable treaty as a precondition to
exemption from, or a reduction in the rate of deduction or withholding of, such
Canadian Taxes; or
(4) which by reason of the legal nature of the Holder of the Securities is
disentitled to the benefit of an applicable treaty.
The Company will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
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The Company will furnish to the Holders of the Securities, within 60 days
after the date the payment of any Canadian Taxes is due pursuant to applicable
law, certified copies of tax receipts or other documents evidencing such payment
by the Company.
(b) The Company will indemnify and hold harmless each Holder (other than an
Excluded Holder) and, upon written request, reimburse each such Holder for the
amount, excluding any Additional Amounts that have been previously been paid by
the Company with respect thereto, of:
(1) any Canadian Taxes so levied or imposed and paid by such Holder as a
result of payments made under or with respect to the Securities;
(2) any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; and
(3) any Canadian Taxes imposed with respect to any reimbursement under
clause (1) or (2) in this paragraph, but excluding any such Canadian Taxes on
such Holder's net income.
At least five (5) days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Company will be
obligated to pay Additional Amounts with respect to such payment, the Company
will deliver to the Trustee an Officers' Certificate stating the fact that such
Additional Amounts will be payable and specifying the amounts so payable and
will set forth such other information necessary to enable the Trustee to pay
such Additional Amounts to Holders on the payment date.
Wherever in this Indenture there is mentioned, in any context, the payment
of principal, and premium, if any, interest, if any, or any other amount payable
under or with respect to a Security, such mention shall be deemed to include
mention of the payment of Additional Amounts to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof.
SECTION 1006. LIMITATION ON SECURITY INTERESTS.
So long as any Securities are outstanding and subject to all the provisions
of this Indenture, the Company will not, and will not permit any Restricted
Subsidiary to, create, assume or otherwise have outstanding any Security
Interest in, on or over any of its or their interest in any Restricted Property,
present or future, securing any Debt of any Person, other than Permitted
Encumbrances, unless at the time thereof or prior thereto the Securities then
outstanding under this Indenture are equally and ratably secured with such Debt.
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SECTION 1007. PAYMENT OF TAXES.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or property of the Company or any
Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required
to pay or discharge or cause to be paid or discharged any such tax, assessment
or charge whose amount, applicability or validity is being contested in good
faith by appropriate proceedings.
SECTION 1008. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Company will not, nor will it permit any of its Restricted Subsidiaries
to, enter into any Sale and Leaseback Transaction with respect to any Restricted
Property owned by the Company or any Subsidiary on the Issue Date unless:
(1) such transaction involves a lease or right to possession or use for a
temporary period not to exceed three years following such sale, and such lease
does not create or evidence a Capital Lease Obligation; or
(2) the Company or such Subsidiary would, on the effective date of such
transaction, be entitled to issue, assume or guarantee Debt secured by a
Security Interest on such property at least equal in amount to the Attributable
Debt in respect thereof, without equally and ratably securing the Securities
then outstanding, as set forth under Section 1006; or
(3) if the proceeds of such sale (a) are equal to or greater than the fair
market value (as determined by any two of the following: the Chairman, the
President, any Vice President, the Treasurer and the Controller of the Company)
of such property and (b) are applied within 270 days after the receipt of such
proceeds, directly or indirectly, to either (i) the purchase, acquisition or
construction of Restricted Property to be used in the operation of the business
of the Company or any of its Restricted Subsidiaries or (ii) the repayment of
Funded Debt (including Securities then outstanding) of the Company or any of its
Restricted Subsidiaries ranking equally and ratably with the Securities then
outstanding. For purposes of this Indenture, any Restricted Property purchased,
acquired or constructed pursuant to clause (b)(i) of this paragraph, will be
deemed to have been purchased, acquired or constructed prior to the Issue Date.
The preceding restrictions shall not apply to any Sale and Leaseback
Transaction between the Company and its Restricted Subsidiaries or between
Restricted Subsidiaries of the Company.
SECTION 1009. CORPORATE EXISTENCE
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the rights (charter and statutory) and franchises of the Company
and any Restricted
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Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries as a whole.
SECTION 1010. WAIVER OF CERTAIN COVENANTS.
The Company may, with respect to any series of Securities, omit in any
particular instance to comply with any term, provision or condition which
affects such series set forth in Section 803 or Sections 1006 through 1009
inclusive or, as specified pursuant to Section 301(20) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to Section
301(20) or Section 301(25) in connection with Securities of such series, if
before the time for such compliance the Holders of at least a majority in
principal amount of all Outstanding Securities of such series (or of all
affected series, as the case may be), by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
SECTION 1011. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If any Securities are Original Issue Discount Securities, then the Company
shall file with the Trustee promptly after the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specified information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with the terms of such Securities and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee
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in writing of such Redemption Date and of the principal amount of Securities
of such series to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 1103. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice in the manner provided in
Section 106 to the Holder of any Securities designated for redemption as a whole
or in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Securities or
portion thereof.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any;
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(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice which
relates to such Security shall state that on and after the Redemption Date, upon
surrender of such Security, the Holder will receive, without charge, a new
Security or Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price and accrued interest,
if any, to the Redemption Date payable as provided in Section 1106 will become
due and payable upon each such Security, or the portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after said
date;
(6) the Place or Places of Payment where such Securities, together in the
case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer Securities of
any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the Redemption Date or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price unless
security or indemnity satisfactory to the Company, the Trustee and any Paying
Agent is furnished; and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on such Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to 10:00 a.m. (New York, New York time) on any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e))
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sufficient to pay the Redemption Price of, and accrued interest, if any, on,
all the Securities which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED FURTHER,
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall be
entitled to receive the amount so deducted; PROVIDED, HOWEVER, that interest
represented by coupons shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal, and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
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SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 1108. TAX REDEMPTION.
Unless otherwise specified pursuant to Section 301, the Company shall have
the right to redeem, at any time, the Securities of a series, in whole but not
in part, at a redemption price equal to the principal amount thereof together
with accrued and unpaid interest to the date fixed for redemption, upon the
giving of a notice as described below, if (1) the Company (or its successor)
determines that (a) as a result of (i) any change in or amendment, including any
announced prospective change, to the laws (or any regulations or rulings
promulgated thereunder) of Canada (or the jurisdiction of organization of the
Company's successor) or of any political subdivision or taxing authority thereof
or therein affecting taxation, or (ii) any amendment to or change in the
application or interpretation of such laws, regulations or rulings by any
legislative body, court of competent jurisdiction, government agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), which change
or amendment is announced or becomes effective on or after a date specified
pursuant to Section 301, if any date is so specified (or the date a Person
organized in a jurisdiction other than Canada or the United States becomes the
Company's successor), the Company has or will become obligated to pay, on the
next succeeding date on which interest is due, Additional Amounts pursuant to
Section 1005 or (b) on or after a date specified pursuant to Section 301, if any
date is so specified (or the date a Person organized in a jurisdiction other
than Canada or the United States becomes the Company's successor), any action
has been taken by any taxing authority of, or any decision has been rendered by
a court of competent jurisdiction in, Canada (or the jurisdiction of
organization of the Company's successor) or any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (a)
above, whether or not such action was taken or decision was rendered with
respect to the Company, or any change, amendment, application or interpretation
shall be officially proposed, which, in any such case, in the Opinion of Counsel
to the Company, will result in the Company becoming obligated to pay, on the
next succeeding date on which interest is due, Additional Amounts with respect
to any Security of such series and (2) in any such case, the Company in its
business judgment determines that such obligation cannot be avoided by the use
of reasonable measures available to the Company; PROVIDED, HOWEVER, that (i) no
such notice of redemption may be given earlier than 60 or later than
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30 days prior to the earliest date on which the Company would be obligated to
pay such Additional Amounts were a payment in respect of the Securities then
due, and (ii) at the time such notice of redemption is given, such obligation
to pay such Additional Amounts remains in effect.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund shall
be made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT." If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash, the
Company may at its option (1) deliver to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto,
and/or (2) receive credit for the principal amount of Securities of such series
which have been previously delivered to the Trustee by the Company or for
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of the same series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED, HOWEVER, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
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SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering or crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series. Such certificate shall be irrevocable and upon its delivery the Company
shall be obligated to make the cash payment or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. In the case of
the failure of the Company to deliver such certificate, the sinking fund payment
due on the next succeeding sinking fund payment date for that series shall be
paid entirely in cash and shall be sufficient to redeem the principal amount of
such Securities subject to a mandatory sinking fund payment without the option
to deliver or credit Securities as provided in Section 1202 and without the
right to make any optional sinking fund payment, if any, with respect to such
series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
On or prior to 10:00 a.m. (New York, New York time) on any sinking fund
payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) in cash a sum equal to any interest that will accrue
to the date fixed for redemption of Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such
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series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by
the Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at the
option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at the
option of the Holders thereof will, unless otherwise provided in the terms of
such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal (or, if so provided by the terms of the Securities of any series,
a percentage of the principal) of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest, if any, on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or
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Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to
be repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof,
exercise of the repayment option by the Holder shall be irrevocable unless
waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE.
If Securities of any series providing for repayment at the option of the
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for repayment
in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Company, together with
accrued interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons
whose Stated Maturity is on or prior to the Repayment Date shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section
301, only upon presentation and surrender of such coupons; and PROVIDED FURTHER,
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; PROVIDED, HOWEVER, that interest represented by coupons
shall be payable only at an office or agency located
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outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, the provisions of this Article Fourteen shall apply to each
series of Securities, and the Company may, at its option, effect defeasance (as
defined below) of the Securities of or within a series under Section 1402, or
covenant defeasance (as defined below) of or within a series under Section 1403
in accordance with the terms of such Securities and in accordance with this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Securities and any related coupons on the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "DEFEASANCE"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and any related coupons and this Indenture
insofar as such Securities and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the
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following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of such Outstanding Securities and any
related coupons to receive, solely from the trust fund described in Section
1404 and as more fully set forth in such Section, payments in respect of the
principal of, and premium, if any, and interest, if any, on such Securities
and any related coupons when such payments are due, (b) the Company's
obligations with respect to such Securities under Sections 304, 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any,
on such Securities as contemplated by Section 1005, (c) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and the Company's
obligation under Section 607 and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section 1402 notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this Section
with respect to any Securities of or within a series, the Company shall be
released from its obligations under Section 803 and Sections 1006 through 1009
inclusive and, if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities and any related
coupons on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and such Securities and any
related coupons shall thereafter be deemed not to be "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "OUTSTANDING" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any related coupons, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of reference in any
such covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 501(4) or otherwise, as the case may be, but, except as specified above,
the remainder of this Indenture and such Securities and any related coupons
shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 1402
or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 608
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such
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Securities and any related coupons, (a) an amount (in such Currency in which
such Securities and any related coupons are then specified as payable at
Stated Maturity), or (b) Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities are then
specified as payable at Stated Maturity) which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of any payment of
principal of, and premium, if any, and interest, if any, under such
Securities and any related coupons, money in an amount, or (c) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants (which shall be expressed in a written
certification thereof delivered to the Company, that is attached to an
Officers' Certificate delivered to the Trustee), to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of, and premium, if any, and interest, if
any, on such Outstanding Securities and any related coupons on the Stated
Maturity (or Redemption Date, if applicable) of such principal, and premium,
if any, or installment of interest, if any, and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and payable
in accordance with the terms of this Indenture and of such Securities and any
related coupons; PROVIDED that the Trustee shall have been irrevocably
instructed to apply such money or the proceeds of such Government Obligations
to said payments with respect to such Securities and any related coupons.
Before such a deposit, the Company may give to the Trustee, in accordance
with Section 1102 hereof, a notice of its election to redeem all or any
portion of such Outstanding Securities at a future date in accordance with
the terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities or any
related coupons shall have occurred and be continuing on the date of such
deposit or, insofar as paragraphs (6) and (7) of Section 501 are concerned, at
any time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company is a party or by which it
is bound.
(4) In the case of an election under Section 1402, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States stating that
(x) the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of execution of this Indenture,
there has been a change in the applicable U.S. federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
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(5) Notwithstanding any other provisions of this Section, such defeasance
or covenant defeasance shall be effected in compliance with any additional or
substitute terms, conditions or limitations in connection therewith pursuant to
Section 301.
(6) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1402 or
the covenant defeasance under Section 1403 (as the case may be) have been
complied with.
(7) In the case of an election under Section 1403, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States to the
effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such
covenant defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(8) Either the Company has delivered to the Trustee an Opinion of Counsel
in Canada or a ruling from Canada Customs and Revenue Agency to the effect that
the Holders of such Outstanding Securities will not recognize income, gain or
loss for Canadian federal or provincial income tax or other tax purpose as a
result of such defeasance or covenant defeasance and will be subject to Canadian
federal or provincial income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case had such defeasance not
occurred (and for the purposes of such opinion, such Canadian counsel shall
assume that Holders of the Securities include Holders who are not resident in
Canada).
(9) The Company is not an "insolvent person" within the meaning of the
BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of such deposit or at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(10) The Company has delivered to the Trustee an Opinion of Counsel to the
effect that such deposit shall not cause the Trustee or the trust so created to
be subject to the Investment Company Act of 1940, as amended.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (or other property as may be provided pursuant to
Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"TRUSTEE") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or
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through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and
any related coupons of all sums due and to become due thereon in respect of
principal, and premium, if any, and interest, if any, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(1) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(1) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1404(1) has been
made, the indebtedness represented by such Security and any related coupons
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of, and premium, if any, and interest, if
any, on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any related coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants (evidenced by an
Officers' Certificate) delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent
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is permitted to apply all such money in accordance with Section 1405;
PROVIDED, HOWEVER, that if the Company makes any payment of principal of, or
premium, if any, or interest, if any, on any such Security or any related
coupon following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities and any related
coupons to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of one or more series of Securities may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in New York, New York, in Calgary, Alberta or in London,
England as the Trustee shall determine. Notice of every meeting of Holders of
one or more series of Securities, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided for in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in New York,
New York, in Calgary Alberta or in London, England for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in paragraph
(a) of this Section 1502.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or
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Holders of one or more Outstanding Securities of such series by such Holder
of Holders. The only Persons who shall be entitled to be present or to speak
at any meeting of Holders of Securities of any series shall be the Person
entitled to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; PROVIDED, HOWEVER, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
lack of a quorum, the Persons entitled to vote 25% in principal amount of the
Outstanding Securities at the time shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
who have cast their votes; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
105
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(A) there shall be no minimum quorum requirement for such meeting; and
(B) the principal amount of the Outstanding Securities of such series
that vote in favor of such request, demand, authorization, direction,
notice, consent, waiver or other action shall be taken into account in
determining whether such request, demand, authorization, direction, notice,
consent, waiver or other action has been made, given or taken under this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
106
(c) At any meeting, each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of Outstanding
Securities of such series held or represented by him (determined as specified in
the definition of "Outstanding" in Section 101); PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. COUNTERPARTS.
This Indenture may be executed in any number of counterparts (either by
facsimile or by original manual signature) each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same Indenture.
* * * * *
107
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PETRO-CANADA
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: _________________________________
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
PETRO-CANADA
[Insert title of sufficient description of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above captioned Securities held by you for our account (i) are owned
by Person(s) (as defined in the indenture, dated _____________, by and between
Petro-Canada and The Bank of New York, as trustee), that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States federal
income taxation regardless of its source ("UNITED STATES PERSON(S)"), (ii) are
owned by United States Person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165 12(c)(1)(v) are herein referred to as
"FINANCIAL INSTITUTIONS") purchasing for their own account or for resale, or (b)
United States Person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise Petro-Canada or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (b) or (c) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163
5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that such financial
institution has not acquired the Securities for purposes of resale directly or
indirectly to a United States Person or to a Person within the United States or
its possessions.
As used herein, "UNITED STATES" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above captioned
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
A-1-1
This certificate excepts and does not relate to [U.S.$] [________] of such
interest in the above captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
_____________________________________
Name:
Title:
X-0-0
XXXXXXX X-0
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
PETRO-CANADA
[Insert title of sufficient description of Securities to be delivered]
This is to certify that based solely on written certifications that we have
received in writing, by tested telex or by electronic transmission from each of
the Persons (as defined in the Indenture, dated ______________, by and between
Petro-Canada and The Bank of New York, as trustee), appearing in our records as
Persons entitled to a portion of the principal amount set forth below (our
"MEMBER ORGANIZATIONS") substantially in the form attached hereto, as of the
date hereof, [U.S.$] [_______] principal amount of the above captioned
Securities (i) is owned by Person(s) that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("UNITED STATES PERSON(S)"), (ii) is owned by United
States Person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165 12(c)(1)(v) are herein referred to as "FINANCIAL INSTITUTIONS")
purchasing for their own account or for resale, or (b) United States Person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Petro-Canada or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (b) or (c) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163 5(c)(2)(i)(D)(7)) and, to the further effect, that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
Person or to a Person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above referenced
A-2-1
certificates of Member Organizations and (ii) as of the date hereof we have
not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[EUROCLEAR BANK S.A./N.A, as Operator of the
Euroclear System]
[CLEARSTREAM]
____________________________________________
By
A-2-2
------------------------------------------------------------------------------
PETRO-CANADA
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
---------
INDENTURE
Dated as of _____ __, 2003
Providing for the issue of
Debt Securities
in unlimited principal amount
---------
------------------------------------------------------------------------------
PETRO-CANADA
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of _______ __, 2003
Trust Indenture Indenture
Act Section Section
ss. 310(a)(1) ................................... 608
(a)(2) ................................... 608
(b) ................................... 609, 610
ss. 312(c) ................................... 703
ss. 314(a) ................................... 705
(a)(4) ................................... 1004
(c)(1) ................................... 102
(c)(2) ................................... 102
(e) ................................... 102
ss. 315(b) ................................... 601
ss. 316(a)(last
Sentence) ................................... 101 ("Outstanding")
(a)(1)(A) ................................... 502, 512
(a)(1)(B) ................................... 513
(b) ................................... 508
(c) ................................... 104(e)
ss. 317(a)(1) ................................... 503
(a)(2) ................................... 504
(b) ................................... 1003
ss. 318(a) ................................... 111
---------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..............................1
SECTION 101. Definitions...............................................................1
SECTION 102. Compliance Certificates and Opinions.....................................18
SECTION 103. Form of Documents Delivered to Trustee...................................19
SECTION 104. Acts of Holders..........................................................20
SECTION 105. Notices, etc. to Trustee and Company.....................................21
SECTION 106. Notice to Holders; Waiver................................................22
SECTION 107. Effect of Headings and Table of Contents.................................23
SECTION 108. Successors and Assigns...................................................23
SECTION 109. Separability Clause......................................................23
SECTION 110. Benefits of Indenture....................................................23
SECTION 111. Governing Law............................................................23
SECTION 112. Legal Holidays...........................................................24
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver of Immunities......24
SECTION 114. Conversion of Currency...................................................25
SECTION 115. Currency Equivalent......................................................26
SECTION 116. Incorporators, Shareholders, Officers and Directors of the Company
Exempt from Individual Liability.........................................26
SECTION 117. Conflict with the Trust Indenture Act....................................27
SECTION 118. Waiver of Jury Trial.....................................................27
SECTION 119. Force Majeure............................................................27
ARTICLE TWO SECURITIES FORMS ..................................................................27
SECTION 201. Forms Generally..........................................................27
SECTION 202. Form of Trustee's Certificate of Authentication..........................28
SECTION 203. Securities Issuable in Global Form.......................................28
ARTICLE THREE THE SECURITIES ..................................................................29
SECTION 301. Amount Unlimited; Issuable in Series.....................................29
SECTION 302. Denominations............................................................33
SECTION 303. Execution, Authentication, Delivery and Dating...........................33
SECTION 304. Temporary Securities.....................................................36
SECTION 305. Registration, Registration of Transfer and Exchange......................38
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.........................42
SECTION 307. Payment of Principal and Interest; Interest Rights Preserved;
Optional Interest Reset..................................................44
SECTION 308. Optional Extension of Stated Maturity....................................46
SECTION 309. Persons Deemed Owners....................................................47
SECTION 310. Cancellation.............................................................48
SECTION 311. Computation of Interest..................................................48
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SECTION 312. Currency and Manner of Payments in Respect of Securities.................49
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent.............51
ARTICLE FOUR SATISFACTION AND DISCHARGE.........................................................52
SECTION 401. Satisfaction and Discharge of Indenture..................................52
SECTION 402. Application of Trust Money...............................................53
ARTICLE FIVE REMEDIES...........................................................................54
SECTION 501. Events of Default........................................................54
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......................55
SECTION 503. Collection of Debt and Suits for Enforcement by Trustee..................57
SECTION 504. Trustee May File Proofs of Claim.........................................58
SECTION 505. Trustee May Enforce Claims Without Possession of Securities..............58
SECTION 506. Application of Money Collected...........................................59
SECTION 507. Limitation on Suits......................................................59
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any,
and Interest, if any.....................................................60
SECTION 509. Restoration of Rights and Remedies.......................................60
SECTION 510. Rights and Remedies Cumulative...........................................61
SECTION 511. Delay or Omission Not Waiver.............................................61
SECTION 512. Control by Holders.......................................................61
SECTION 513. Waiver of Past Defaults..................................................61
SECTION 514. Waiver of Stay or Extension Laws.........................................62
SECTION 515. Undertaking for Costs....................................................62
ARTICLE SIX THE TRUSTEE.........................................................................63
SECTION 601. Notice of Defaults.......................................................63
SECTION 602. Certain Duties and Responsibilities of Trustee...........................63
SECTION 603. Certain Rights of Trustee................................................64
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities...........66
SECTION 605. May Hold Securities......................................................66
SECTION 606. Money Held in Trust......................................................66
SECTION 607. Compensation and Reimbursement...........................................66
SECTION 608. Corporate Trustee Required; Eligibility..................................67
SECTION 609. Resignation and Removal; Appointment of Successor........................68
SECTION 610. Acceptance of Appointment by Successor...................................69
SECTION 611. Merger, Conversion, Consolidation or Succession to Business..............70
SECTION 612. Authorization of Authenticating Agent....................................71
SECTION 613. Appointment of Co-Trustee................................................73
ii
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ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................74
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders................74
SECTION 702. Preservation of List of Names and Addresses of Holders...................74
SECTION 703. Disclosure of Names and Addresses of Holders.............................75
SECTION 704. Reports by Trustee.......................................................75
SECTION 705. Reports by the Company...................................................75
ARTICLE EIGHT CONSOLIDATION, AMALGAMATION, MERGER AND SALE OF ASSETS............................76
SECTION 801. Company May Consolidate, etc. only on Certain Terms......................76
SECTION 802. Successor Person Substituted.............................................77
SECTION 803. Securities to Be Secured in Certain Events...............................77
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................78
SECTION 901. Supplemental Indentures Without Consent of Holders.......................78
SECTION 902. Supplemental Indentures with Consent of Holders..........................79
SECTION 903. Execution of Supplemental Indentures.....................................81
SECTION 904. Effect of Supplemental Indentures........................................81
SECTION 905. Conformity with the Trust Indenture Act..................................81
SECTION 906. Reference in Securities to Supplemental Indentures.......................81
SECTION 907. Notice of Supplemental Indentures........................................81
ARTICLE TEN COVENANTS...........................................................................82
SECTION 1001. Payment of Principal, Premium, if any, and Interest......................82
SECTION 1002. Maintenance of Office or Agency..........................................82
SECTION 1003. Money for Securities Payments to Be Held in Trust........................84
SECTION 1004. Statement as to Compliance...............................................85
SECTION 1005. Additional Amounts.......................................................86
SECTION 1006. Limitation on Security Interests.........................................87
SECTION 1007. Payment of Taxes.........................................................88
SECTION 1008. Limitation on Sale and Leaseback Transactions............................88
SECTION 1009. Corporate Existence......................................................88
SECTION 1010. Waiver of Certain Covenants..............................................89
SECTION 1011. Calculation of Original Issue Discount...................................89
ARTICLE ELEVEN REDEMPTION OF SECURITIES.........................................................89
SECTION 1101. Applicability of Article.................................................89
SECTION 1102. Election to Redeem; Notice to Trustee....................................89
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........................90
SECTION 1104. Notice of Redemption.....................................................90
SECTION 1105. Deposit of Redemption Price..............................................91
SECTION 1106. Securities Payable on Redemption Date....................................92
SECTION 1107. Securities Redeemed in Part..............................................93
SECTION 1108. Tax Redemption...........................................................93
iii
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ARTICLE TWELVE SINKING FUNDS....................................................................94
SECTION 1201. Applicability of Article.................................................94
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....................94
SECTION 1203. Redemption of Securities for Sinking Fund................................95
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS.................................................96
SECTION 1301. Applicability of Article.................................................96
SECTION 1302. Repayment of Securities..................................................96
SECTION 1303. Exercise of Option.......................................................96
SECTION 1304. When Securities Presented for Repayment Become Due and Payable...........97
SECTION 1305. Securities Repaid in Part................................................98
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE.............................................98
SECTION 1401. Company's Option to Effect Defeasance or Covenant........................98
SECTION 1402. Defeasance and Discharge.................................................98
SECTION 1403. Covenant Defeasance......................................................99
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........................99
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..........................................101
SECTION 1406. Reinstatement...........................................................102
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES..............................................103
SECTION 1501. Purposes for Which Meetings May Be Called...............................103
SECTION 1502. Call, Notice and Place of Meetings......................................103
SECTION 1503. Persons Entitled to Vote at Meetings....................................103
SECTION 1504. Quorum; Action..........................................................104
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.....105
SECTION 1506. Counting Votes and Recording Action of Meetings.........................106
SECTION 1507. Counterparts............................................................106
EXHIBITS
Exhibit A FORMS OF CERTIFICATION
Exhibit A-1 - FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE
BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE
EXCHANGE DATE.........................................................A-1-1
Exhibit A-2 - FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE.....A-2-1
iv
