EXHIBIT 4.1
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NEXEN INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
SENIOR DEBT INDENTURE
DATED AS OF MAY 4, 2007
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NEXEN INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of May 4, 2007
TRUST INDENTURE ACT SECTION INDENTURE SECTION
310(a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08, 6.10
311(a) 6.13
(b) 6.13
(c) Not Applicable
312(a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313(a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a), 7.03(b)
(d) 7.03(b)
314(a) 7.04
(a)(4) 10.03
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315(a) 6.01(a)
(b) 6.02, 7.03(a)
(c) 6.01(b)
(d) 6.01(c)
(d)(1) 6.01(a), 6.01(c)
(d)(2) 6.01(c)
(d)(3) 6.01(c)
(e) 5.14
316(a)(1)(A) 5.12
(a)(1)(B) 5.02, 5.13
(a)(2) Not Applicable
(b) 5.08
(c) 1.04(e)
317(a)(1) 5.03
(a)(2) 5.04
(b) 10.04
318(a) 1.07
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TABLE OF CONTENTS
PAGE
ARTICLE 1 Definitions and Other Provisions of General Application.........................1
Section 1.01 Definitions.........................................................1
Section 1.02 Compliance Certificates and Opinions...............................14
Section 1.03 Form of Documents Delivered to Trustee.............................15
Section 1.04 Acts of Holders....................................................15
Section 1.05 Notices, Etc., to Trustee and the Issuer...........................17
Section 1.06 Notice to Holders; Waiver..........................................17
Section 1.07 Conflict With Trust Indenture Act..................................18
Section 1.08 Effect of Headings and Table of Contents...........................18
Section 1.09 Successors and Assigns.............................................18
Section 1.10 Separability Clause................................................18
Section 1.11 Benefits of Indenture..............................................18
Section 1.12 Governing Law......................................................19
Section 1.13 Legal Holidays.....................................................19
Section 1.14 No Recourse Against Others.........................................19
Section 1.15 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.........................................................19
Section 1.16 Judgment Currency..................................................20
Section 1.17 Counterparts.......................................................20
ARTICLE 2 Security Forms.................................................................21
Section 2.01 Forms Generally....................................................21
Section 2.02 Form of Trustee's Certificate of Authentication....................21
Section 2.03 Securities in Global Form..........................................21
Section 2.04 Form of Legend for the Securities in Global Form...................22
ARTICLE 3 The Securities.................................................................23
Section 3.01 Amount Unlimited; Issuable in Series...............................23
Section 3.02 Denominations......................................................26
Section 3.03 Execution, Authentication, Delivery and Dating.....................26
Section 3.04 Temporary Securities...............................................28
Section 3.05 Registration, Registration of Transfer and Exchange................29
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities...................32
Section 3.07 Payment of Interest; Interest Rights Preserved.....................32
Section 3.08 Persons Deemed Owners..............................................33
Section 3.09 Cancellation.......................................................34
Section 3.10 Computation of Interest............................................34
Section 3.11 Cusip Number.......................................................34
Section 3.12 Wire Transfers.....................................................35
ARTICLE 4 Satisfaction and Discharge.....................................................35
Section 4.01 Satisfaction and Discharge of Indenture............................35
Section 4.02 Application of Trust Money.........................................36
Section 4.03 Reinstatement......................................................36
Section 4.04 Application to a Specific Series of Securities.....................37
ARTICLE 5 Remedies.......................................................................37
Section 5.01 Events of Default..................................................37
Section 5.02 Acceleration of Maturity; Rescission and Annulment.................39
Section 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee....40
Section 5.04 Trustee May File Proofs of Claim...................................41
Section 5.05 Trustee May Enforce Claims Without Possession of Securities........42
Section 5.06 Application of Money Collected.....................................42
Section 5.07 Limitation On Suits................................................43
Section 5.08 Unconditional Right of Holders to Receive Principal, Premium,
Other Amounts and Interest.........................................43
Section 5.09 Restoration of Rights and Remedies.................................43
Section 5.10 Rights and Remedies Cumulative.....................................44
Section 5.11 Delay or Omission Not Waiver.......................................44
Section 5.12 Control by Holders.................................................44
Section 5.13 Waiver of Past Defaults............................................44
Section 5.14 Undertaking for Costs..............................................45
ARTICLE 6 The Trustee....................................................................45
Section 6.01 Certain Duties and Responsibilities of the Trustee.................45
Section 6.02 Notice of Defaults.................................................46
Section 6.03 Certain Rights of Trustee..........................................46
Section 6.04 Not Responsible for Recitals or Issuance of Securities.............48
Section 6.05 May Hold Securities................................................48
Section 6.06 Money Held in Trust................................................48
Section 6.07 Compensation and Reimbursement.....................................48
Section 6.08 Disqualification; Conflicting Interests............................49
Section 6.09 Corporate Trustee Required; Eligibility............................49
Section 6.10 Resignation and Removal; Appointment of Successor..................50
Section 6.11 Acceptance of Appointment by Successor.............................51
Section 6.12 Merger, Conversion, Consolidation or Succession to Business........52
Section 6.13 Preferential Collection of Claims Against the Issuer...............53
Section 6.14 Appointment of Authenticating Agent................................53
Section 6.15 Compliance With Tax Laws...........................................54
ARTICLE 7 Holders' Lists and Reports by Trustee and Issuer...............................55
Section 7.01 Issuer to Furnish Trustee Names and Addresses of Holders...........55
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Section 7.02 Preservation of Information; Communications to Holders.............55
Section 7.03 Reports by Trustee.................................................56
Section 7.04 Reports by the Issuer..............................................57
ARTICLE 8 Consolidation, Merger, Lease, Sale or Transfer.................................57
Section 8.01 Certain Requirements in Respect to Mergers, Etc....................57
Section 8.02 Vesting of Powers in Successor.....................................59
Section 8.03 Reorganization Additional Amounts..................................60
ARTICLE 9 Supplemental Indentures........................................................61
Section 9.01 Supplemental Indentures Without Consent of Holders.................61
Section 9.02 Supplemental Indentures With Consent of Holders....................63
Section 9.03 Execution of Supplemental Indentures...............................64
Section 9.04 Effect of Supplemental Indentures..................................64
Section 9.05 Conformity With Trust Indenture Act................................65
Section 9.06 Reference in Securities to Supplemental Indentures.................65
ARTICLE 10 Covenants.....................................................................65
Section 10.01 Payment of Securities..............................................65
Section 10.02 Maintenance of Office or Agency....................................65
Section 10.03 Compliance Certificates............................................65
Section 10.04 Money for Securities Payments to be Held in Trust..................66
Section 10.05 Canadian Witholding Taxes..........................................67
Section 10.06 Limitation On Liens................................................69
Section 10.07 Payment of Taxes...................................................70
Section 10.08 Corporate Existence................................................70
Section 10.09 Waiver of Certain Covenants........................................70
ARTICLE 11 Redemption of Securities......................................................70
Section 11.01 Applicability of Article...........................................70
Section 11.02 Election to Redeem; Notice to Trustee..............................70
Section 11.03 Selection by Trustee of Securities to be Redeemed..................71
Section 11.04 Notice of Redemption...............................................71
Section 11.05 Deposit of Redemption Price........................................72
Section 11.06 Securities Payable On Redemption Date..............................72
Section 11.07 Securities Redeemed in Part........................................72
Section 11.08 Redemption for Changes in Canadian Tax Law.........................73
ARTICLE 12 Sinking Funds.................................................................73
Section 12.01 Applicability of Article...........................................73
Section 12.02 Satisfaction of Sinking Fund Payments With Securities..............74
Section 12.03 Redemption of Securities for Sinking Fund..........................74
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ARTICLE 13 Defeasance and Covenant Defeasance............................................74
Section 13.01 Applicability of Article; Issuer's Option to Effect Defeasance or
Covenant Defeasance................................................74
Section 13.02 Defeasance and Discharge...........................................75
Section 13.03 Covenant Defeasance................................................75
Section 13.04 Conditions to Defeasance or Covenant Defeasance....................76
Section 13.05 Deposited Money and Government Obligations to be Held in Trust.....78
Section 13.06 Reinstatement......................................................78
ARTICLE 14 Meetings of Holders of Securities.............................................79
Section 14.01 Purposes for Which Meetings May be Called..........................79
Section 14.02 Call, Notice and Place of Meetings.................................79
Section 14.03 Persons Entitled to Vote At Meetings...............................79
Section 14.04 Quorum; Action.....................................................80
Section 14.05 Determination of Voting Rights; Conduct and Adjournment of
Meetings...........................................................81
Section 14.06 Counting Votes and Recording Action of Meetings....................82
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INDENTURE, dated as of May 4, 2007, between NEXEN INC., a corporation
formed under the laws of Canada (herein called the "ISSUER") and Deutsche Bank
Trust Company Americas, as Trustee (herein called the "TRUSTEE").
RECITALS OF THE ISSUER
The Issuer 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"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Issuer, 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 thereof, it is mutually covenanted and agreed, for
the equal and ratable benefit of the Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 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, or defined by
Commission rule and not otherwise defined herein, 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;
(4) the word "INCLUDING" (and with correlative meaning "INCLUDE")
means including, without limiting the generality of, any description preceding
such term; and
(5) 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.
"ACCELERATED INDEBTEDNESS" has the meaning specified in Section 5.01.
"ACT," when used with respect to any Holder, has the meaning specified
in Section 1.04.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 10.05.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "CONTROL",
as used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH" shall have
correlative meanings.
"APPLICABLE CURRENCY" means, with respect to a Security, the currency
or currency unit in which such Security is payable.
"APPLICABLE JURISDICTION" has the meaning specified in Section 8.01.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"BANKRUPTCY LAW" means the Bankruptcy and Insolvency Act (Canada), the
Companies' Creditors Arrangement Act (Canada) or any other Canadian federal or
provincial law relating to, or Title 11, U.S. Code or any similar federal or
state law relating to, the relief of debtors.
"BOARD OF DIRECTORS" means, with respect to any corporation, the board
of directors of such corporation; PROVIDED, HOWEVER, that when the context
refers to actions or resolutions of the Board of Directors, then the term
"BOARD OF DIRECTORS" shall also mean any duly authorized committee of the Board
of Directors authorized to act with respect to any particular matter to
exercise the power of the Board of Directors.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the relevant entity to have been duly
adopted by the Board of Directors, PROVIDED that, when used without any
reference to an entity, "BOARD RESOLUTION" and "BOARD RESOLUTIONS" shall mean
Board Resolutions of the Issuer; in each case, 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 of
any series, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law or regulation to close; PROVIDED, HOWEVER, that, if the
foreign currency or currency unit is euro, the day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open.
2
"CANADIAN TAXES" has the meaning specified in Section 10.05.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, warrants, rights, options or other equivalents
(however designated) of capital stock or any other equity interest of such
Person, including, without limitation, each class of common stock and preferred
stock and, with respect to partnerships, partnership interests (whether general
or limited) and any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of
the assets of, such partnership.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument 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.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
any Person on a consolidated basis (less applicable reserves and other properly
deductible items) after deducting therefrom:
(i) all current liabilities (excluding any indebtedness
classified as a current liability and any current liabilities which are by
their terms extendible or renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which the amount thereof is being
computed);
(ii) all goodwill, trade names, trademarks, patents, unamortized
debt discounts and expenses and other like intangibles; and
(iii) appropriate adjustments on account of minority interests of
other persons holding shares of the Subsidiaries of such Person,
in each case, as shown on the most recent annual audited or quarterly
unaudited consolidated balance sheet of such Person computed in accordance with
GAAP.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date hereof is located at 00 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
"COVENANT DEFEASANCE" has the meaning specified in Section 13.03.
"CURRENCY UNIT" or "CURRENCY UNITS" shall mean any composite currency.
"CURRENT ASSETS" means current assets as determined in accordance with
GAAP.
3
"CUSTODIAN" means any receiver, custodian, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"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 3.07.
"DEFEASANCE" has the meaning specified in Section 13.02.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more global
Securities, the Person designated as Depositary by the Issuer pursuant to
Section 3.01 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "DEPOSITARY" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" shall mean the Depositary
with respect to the Securities of that series.
"DESIGNATED OFFICER" means any Officer of the relevant Person, who
must be its Chief Executive Officer, its President, its Chief Financial
Officer, its Chief Accounting Officer, its Treasurer or its Controller.
"DOLLARS" and "$" means lawful money of the United States of America.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations promulgated thereunder.
"EXCLUDED HOLDER" has the meaning specified in Section 10.05.
"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), electric lines and other
utilities; 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.
"GAAP" means generally accepted accounting principles which are in
effect from time to time in Canada.
4
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security
is registered in the Security Register.
"INDEBTEDNESS," as to any Person, means, without duplication, all
items of indebtedness or liability which in accordance with GAAP would be
considered to be indebtedness or liabilities of such Person as at the date as
of which indebtedness is to be determined, including Indebtedness for Borrowed
Money.
"INDEBTEDNESS FOR BORROWED MONEY," as to any Person, means, without
duplication, the full amount of all liabilities of such Person for the
repayment, either in money or in property, of borrowed money, and the full
amount of liabilities of others for the repayment, either in money or in
property, of borrowed money, that is guaranteed or endorsed (otherwise than for
purposes of collection) by such Person, or which such Person is obligated,
contingently or otherwise, to purchase, or on which such Person is otherwise
contingently liable, provided that a contingent liability for borrowed money
shall only constitute Indebtedness for Borrowed Money where the amount thereof
is recorded as a liability in the most recent consolidated financial statements
of such Person prepared in accordance with GAAP.
"INDENTURE" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more Series Supplements
or indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of
Securities established as contemplated hereunder.
"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.
"INTEREST PAYMENT DATE," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"ISSUER" means the Person named as the "Issuer" in the first paragraph
of this Indenture until a successor corporation or other entity shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Issuer" shall mean such successor corporation or entity.
"ISSUER REQUEST" or "ISSUER ORDER" means a written request or order
signed in the name of the Issuer by the Designated Officer and delivered to the
Trustee.
"JUDGMENT CURRENCY" has the meaning specified in Section 1.16.
"MATURITY," when used with respect to any Security, means 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, call for redemption or otherwise.
5
"NEW YORK BANKING DAY" has the meaning specified in Section 1.16.
"NON-RECOURSE DEBT" means indebtedness to finance the creation,
development, construction or acquisition of properties or assets and any
increases in or extensions, renewals or refinancings of such indebtedness,
provided that the recourse of the lender thereof (including any agent, trustee,
receiver or other Person acting on behalf of such entity) in respect of such
indebtedness is limited (except for recourse with respect to a breach of
representations, warranties or covenants not related to repayment of such
indebtedness to the extent such representations, warranties and covenants are
customarily given in non-recourse financings) to the properties or assets
created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or collateral
connected with the properties or assets created, developed, constructed or
acquired and to which such lender has recourse.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
any Vice President, the Chief Financial Officer, the Chief Accounting Officer,
the Treasurer, any Assistant Treasurer, the Controller, any Assistant
Controller, the Secretary or any Assistant Secretary of such Person.
"OFFICER'S CERTIFICATE" means, with respect to a Person, a certificate
signed and delivered to the Trustee by the Designated Officer of that Person.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be an
employee of or counsel for the Issuer, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount (excluding any amounts attributable to accrued but unpaid
interest thereon) less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02.
"OUTSTANDING," when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption money in the necessary amount and in the Applicable Currency has
been theretofore deposited with the Trustee or any Paying Agent (other than the
Issuer or any other obligor on the Securities) in trust or set aside and
segregated in trust by the Issuer or any other obligor on the Securities (if
the Issuer or any other obligor on the Securities shall act as its own Paying
Agent) for the Holders of such Securities; PROVIDED that, if such Securities or
portions thereof are to be redeemed, notice of such redemption has been
6
duly given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made;
(iii) Securities which have been paid as provided herein 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 reasonably
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Issuer;
(iv) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture;
and
(v) Securities which have been defeased pursuant to Section
13.02;
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 whether
sufficient funds are available for redemption or for any other purpose and for
the purpose of making the calculations required by Section 313 of the Trust
Indenture Act, (a) the principal amount of any Original Issue Discount Security
that shall be deemed to be Outstanding for such purposes shall be that portion
of the principal amount thereof that could be declared to be due and payable
upon the occurrence of an Event of Default and the continuation thereof
pursuant to the terms of such Original Issue Discount Security as of the date
of such determination, (b) the principal amount of a Security denominated in
one or more foreign currencies or currency units shall be the dollar equivalent
that could be obtained for such principal amount on the basis of a spot rate of
exchange specified to the Trustee for such series in an Officer's Certificate
for such foreign currency or currency unit into dollars as of the date the
taking of such action by the Holders of the requisite percentage in principal
amount of the Securities is evidenced to the Trustee (or, in the case of an
Original Issue Discount Security, the dollar equivalent on such date of the
amount determined as provided in (a) above), and (c) Securities owned by the
Issuer or any other obligor upon the Securities or any Affiliate of the Issuer
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 relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee actually
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 Issuer or any
other obligor upon the Securities or any Affiliate of the Issuer or of such
other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to pay the
principal of, premium, if any, interest or other amounts on any Securities on
behalf of the Issuer. An Issuer may act as Paying Agent with respect to any
Securities issued hereunder.
"PERMITTED ENCUMBRANCES" means any of the following:
7
(i) Security Interests arising under partnership agreements, oil
and gas leases, overriding royalty agreements, net profits agreements,
production payment agreements, royalty trust agreements, master limited
partnership agreements, farm-out agreements, division orders, contracts for the
sale, purchase, exchange, transportation, gathering or processing of oil, gas
or other hydrocarbons, unitizations and pooling designations, declarations,
orders and agreements, joint venture or joint operation agreements, development
agreements, operating agreements, production sales contracts (including
Security Interests in respect of take or pay or similar obligations
thereunder), area of mutual interest agreements, 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
gas business, and other agreements which are customary in the oil and gas
business, provided in all instances that such Security Interests are limited to
the assets that are the subject of the relevant agreement;
(ii) Security Interests arising under partnership agreements,
production payment agreements, contracts for the sale, purchase, exchange,
transportation or processing of industrial chemicals, operating agreements,
production sales contracts (including Security Interests in respect of take or
pay or similar obligations thereunder) and shared facilities and services
agreements which in each of the foregoing cases is entered into in the ordinary
course of the industrial chemical business, and other agreements which are
customary in the industrial chemical business, provided in all instances that
such Security Interests are limited to the assets that are the subject of the
relevant agreement;
(iii) Security Interests on property not situated in Canada, the
United Kingdom or the United States;
(iv) Security Interests on assets or property (including oil sands
property) or any interest therein, construction thereon or improvements thereto
and on any receivables, inventory, equipment, chattel paper, contract rights,
intangibles or other assets, rights or collateral related to such assets or
property, securing: (A) all or any portion of the cost of acquisition (directly
or indirectly), surveying, exploration, drilling, development, extraction,
mining, operation, production, construction, alteration, repair or improvement
of all or any part of such assets or property, the plugging and abandonment of
xxxxx and the decommissioning or removal of structures or facilities located
thereon, and the reclamation and clean-up of such properties, facilities and
interests and surrounding lands whether or not owned by the Issuer or its
Restricted Subsidiaries, including the cost of acquisition of ownership of any
Person which owns any such assets or property, (B) all or any portion of the
cost of acquiring (directly or indirectly), developing, constructing, altering,
improving, operating or repairing any assets or property (or improvements on
such assets or property) used or to be used in connection with such assets or
property, whether or not located (or located from time to time) at or on such
assets or property, and (C) indebtedness incurred by the Issuer or any of its
Subsidiaries to provide funds for the activities set forth in clauses (A) and
(B) above, provided such indebtedness is incurred prior to, during or within
two years after the completion of acquisition, construction or such other
activities referred to in clauses (A)
8
and (B) above, and (D) indebtedness incurred by the Issuer or any of its
Subsidiaries to refinance indebtedness incurred for the purposes set forth in
clauses (A) and (B) above. Without limiting the generality of the foregoing,
costs incurred after the date hereof with respect to clauses (A) or (B) above
shall include costs incurred for all facilities relating to such assets or
property, or to projects, ventures or other arrangements of which such assets
or property form a part or which relate to such assets or property, which
facilities shall include, without limitation, Facilities, whether or not in
whole or in part located (or from time to time located) at or on such assets or
property;
(v) Security Interests on property, assets or facilities used in
connection with, or necessarily incidental to, the purchase, sale, storage,
transportation or distribution of oil or gas, or the products derived from oil
or gas;
(vi) Security Interests in respect of securities or Indebtedness
of a Subsidiary other than a Restricted Subsidiary;
(vii) Security Interests on any 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 or any public utility or governmental or other public authority,
where such Security Interests are required pursuant to any contract or
applicable law, or with respect to any franchise, grant, license or permit;
(viii) Security Interests on cash or marketable securities of the
Issuer or any Restricted Subsidiary granted in the ordinary course of business
in connection with:
(A) any currency swap agreements, forward exchange rate
agreements, foreign currency futures or options, exchange rate insurance and
other similar agreements or arrangements;
(B) any interest rate swap agreements, forward rate
agreements, interest rate cap or collar agreements or other similar financial
agreements or arrangements; or
(C) any agreements or arrangements entered into for the
purpose of hedging product prices;
(ix) pre-existing Security Interests on assets when acquired or
when the owner thereof becomes a Restricted Subsidiary, or Security Interests
given by such Restricted Subsidiary on other assets of such Restricted
Subsidiary in compliance with obligations under trust deeds or other
instruments entered into prior to its becoming a Restricted Subsidiary, or
pre-existing Security Interests existing on assets of a Person at the time such
Person is merged, amalgamated, liquidated or consolidated with or into the
Issuer or any Restricted Subsidiary;
(x) Purchase Money Mortgages;
9
(xi) Security Interests on Current Assets given in the ordinary
course of business to any financial institution to secure any Indebtedness
payable on demand or maturing (including any right of extension or renewal) 18
months or less after the date such Indebtedness is incurred or the date of any
renewal or extension thereof;
(xii) Security Interests given by the Issuer in favour of a
Restricted Subsidiary or by a Restricted Subsidiary in favour of the Issuer or
another Restricted Subsidiary;
(xiii) Security Interests in respect of transactions such as the
sale (including any forward sale) or other transfer, in the ordinary course of
business, of:
(A) oil, gas or other minerals, whether in place or when
produced, for a period of time until, or in an amount such that, the purchaser
will realize therefrom a specified amount of money (however determined) or a
specified amount of such minerals; or
(B) any other interests in property of a character
commonly referred to as a "production payment";
(xiv) rights of set off;
(xv) Security Interests existing as of the date of this Indenture;
(xvi) extensions, renewals or replacements of all or part of any
Security Interest permitted under paragraphs (i) to (xv) hereof or successive
extensions, renewals or replacements thereof, provided that such Security
Interest relates to the same property plus improvements, if any, and provided
that the amount of Indebtedness secured thereby will not exceed the principal
amount of such Indebtedness immediately prior to such extension, renewal or
replacement plus an amount necessary to pay any fees or expenses, including
premiums, related to such extension, renewal or replacement; and
(xvii) Security Interests that would otherwise be prohibited
(including any extensions, renewals or replacements thereof or successive
extensions, renewals or replacements thereof), provided that the aggregate
Indebtedness outstanding and secured under this paragraph (xvii) does not
(calculated at the time of giving of Security Interests on the Indebtedness and
not at the time of any extension, renewal or replacement thereof) exceed an
amount equal to 10% of Consolidated Net Tangible Assets of the Issuer.
"PERSON" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"PLACE OF PAYMENT," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest or other amounts on the Securities of that series are payable as
specified as contemplated by Section 3.01.
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"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 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PURCHASE MONEY MORTGAGE" means a mortgage, charge or other Security
Interest on or against any property securing any Purchase Money Obligation for
such property, provided that such mortgage, charge or Security Interest is
created or assumed within 18 months after such property is acquired.
"PURCHASE MONEY OBLIGATION" means any Indebtedness created or assumed
as part of the purchase price of real or personal property, whether or not
secured, and any extensions, renewals, refinancings or refundings of any such
Indebtedness, provided that the principal amount of such Indebtedness
outstanding on the date of such extension, renewal, refinancing or refunding is
not increased other than by an amount necessary to pay any fees or expenses,
including premiums, related to such extension, renewal, refinancing or
refunding and further provided that any security given in respect of such
Indebtedness shall not extend to any property other than the property acquired
in connection with which such Indebtedness was created or assumed and fixed
improvements, if any, erected or constructed thereon.
"REDEMPTION DATE," when used with respect to any Security of any
series 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 of any
series to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture, payable in the Applicable Currency, which price excludes
accrued and unpaid interest, if any, payable on redemption.
"REGISTERED SECURITY" means any Security issued hereunder and
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 3.01.
"REINCORPORATION" has the meaning specified in Section 8.01.
"REORGANIZATION ADDITIONAL AMOUNTS" has the meaning specified in
Section 8.01.
"REQUIRED CURRENCY" has the meaning specified in Section 1.16.
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"RESPONSIBLE OFFICER," when used with respect to the Trustee, means
any officer of the Trustee assigned to administer corporate trust matters,
including any managing director, director, vice president, assistant vice
president, secretary, assistant secretary, assistant treasurer and associate,
and also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a
primary nature located in the United States, the United Kingdom or Canada, and
any facilities located in the United States, the United Kingdom or Canada,
directly related to the mining, processing or manufacture of hydrocarbons or
minerals, or any of the constituents thereof, or the derivatives therefrom and
includes Voting Stock or other interests of a corporation or other Person 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 Restricted Property, (ii) any
property which, in the opinion of the Board of Directors, is not materially
important to the total business conducted by the Issuer and its Subsidiaries as
an entirety, or (iii) any portion of a particular property which, in the
opinion of the Board of Directors, is not materially important to the use or
operation of such property.
"RESTRICTED SUBSIDIARY" means:
(i) any Subsidiary of the Issuer which owns Restricted
Property, which Restricted Property owned by such Subsidiary represents not
less than the greater of 5% of the Issuer's Consolidated Net Tangible Assets
and $50,000,000 (or the equivalent thereof in any other currency), excluding
however any such Subsidiary if the amount of the Issuer's share of the
Shareholders' Equity therein does not at the time of determination exceed 2% of
the Shareholders' Equity of the Issuer, and
(ii) any Subsidiary of the Issuer designated as a
Restricted Subsidiary from time to time in any designation in substantially the
form set forth in Schedule A to this Indenture (a "Designation").
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"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; provided, however, for greater
certainty, "Security Interest" shall not include any security interest referred
to in Section 1(1)(tt)(ii) of the PERSONAL PROPERTY SECURITY ACT (Alberta).
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
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"SERIES SUPPLEMENT" has the meaning specified in Section 3.01.
"SHAREHOLDERS' EQUITY" means the aggregate amount of shareholders'
equity (including but not limited to share capital, contributed surplus and
retained earnings) of a Person as shown on the most recent annual audited or
quarterly unaudited consolidated balance sheet of the Person and computed in
accordance with GAAP.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"SUBSIDIARY" means, with respect to any Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (b)
the only general partners of which are such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"SUCCESSOR CORPORATION" has the meaning specified in Section 8.01.
"TAXES" has the meaning specified in Section 8.01.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument 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,
and if at any time there is more than one such Person, "Trustee" shall mean
each such Trustee. The term "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was executed;
PROVIDED, HOWEVER, that in the event that such Act is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
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"U.S. GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or otherwise
subject to prepayment, and shall also include a depository receipt issued by a
New York Clearing House bank or trust company as custodian with respect to any
such U.S. Government Obligation, or a specific payment of interest on or
principal of any such U.S. 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
held by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"VICE PRESIDENT," when used with respect to the Issuer 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 STOCK" of any Person as of any date means the Capital Stock of
such Person that is at the time entitled to vote in the election of the Board
of Directors of such Person.
Section 1.02 COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Issuer to the Trustee to take any action under
any provision of this Indenture, the Issuer shall furnish to the Trustee an
Officer's Certificate stating that all conditions precedent, if any, provided
for in this Indenture 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
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) 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;
(c) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an
14
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03 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 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 may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer actually knows that the certificate or opinion
or representations with respect to the matters upon which his 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 Issuer stating
that the information with respect to such factual matters is in the possession
of the Issuer, unless such counsel actually knows that the certificate or
opinion or representations with respect to such matters are erroneous.
Any certificate, statement or opinion of an Officer of the Issuer 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 Issuer, unless such Officer or counsel, as the
case may be, actually knows that the certificate or opinion or representations
with respect to the accounting matters upon which his or her certificate,
statement or opinion is 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.
Section 1.04 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 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; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Issuer. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "ACT" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture
15
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Section.
(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 the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his 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 ownership of Registered Securities shall be proved by the
Security Register.
(d) 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 Issuer in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Issuer shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Issuer 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
Issuer shall have no obligation to do so, PROVIDED that the Issuer may not set
a record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the immediately following paragraph. 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
six months after the record date.
(f) The Trustee shall set a record date, which shall not be more
than 15 days prior to the date of commencement of solicitation of such action
contemplated by this section 1.04(f), for the purpose of determining the
Holders of Securities of any series entitled to join in the giving or making of
(i) any notice of default, (ii) any declaration of acceleration referred to in
Section 5.02, (iii) any direction referred to in Section 5.12,
16
(iv) any request to institute proceedings referred to in Section 5.07(2) or (v)
any waiver of past defaults pursuant to Section 5.13, in each case with respect
to Securities of such series. If such a record date is fixed pursuant to this
paragraph, the relevant action may be taken or 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 of Securities of a series for the
purpose of determining whether Holders of the requisite proportion of
Outstanding Securities of such series have authorized or agreed or consented to
such action, and for that purpose the Outstanding Securities of such series
shall be computed as of such record date; PROVIDED that no such action by
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six
months after the record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's reasonable expense, shall cause notice of such record date and
the proposed action by Holders to be given to the Issuer in writing and to each
Holder of Securities of the relevant series in the manner set forth in Section
1.06.
Section 1.05 NOTICES, ETC., TO TRUSTEE AND THE ISSUER. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(a) the Trustee or a Responsible Officer of the Trustee by any
Holder or by the Issuer shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing and mailed first-class postage
prepaid, to or with the Trustee at 00 Xxxx Xxxxxx, 00xx Xxxxx, Mailstop NYC
60-2710, Xxx Xxxx, Xxx Xxxx 00000-0000 with a copy to 00 XxXxxxxx Xxxxxx, XX
00-0000, Xxxxxx, Xxx Xxxxxx 00000 or if sent by facsimile transmission, to a
facsimile number provided by the Trustee, with a copy mailed, first-class
postage prepaid to the Trustee addressed to it as provided above; or
(b) the Issuer 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, addressed to
the Issuer's agent for service of process at Nexen Petroleum U.S.A. Inc., 00000
Xxxxx Xxxxx, Xxxxx 000, XX 00, Xxxxxx, Xxxxx 00000, or at any other address
previously furnished in writing to the Trustee by the Issuer, or if sent by
facsimile transmission, to a facsimile number provided to the Trustee by the
Issuer, with a copy mailed, first-class postage prepaid, to the Issuer
addressed to it as provided above.
Section 1.06 NOTICE TO HOLDERS; WAIVER. Where this Indenture or
any Security provides for notice to Holders of any event, such notice shall be
deemed sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first- class postage prepaid, to
each Holder affected by such event, at
17
his 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 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 or the validity of the proceedings to which such notice relates.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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 or any Security 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 1.07 CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required to be included or deemed included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act that may be so modified or excluded, such provision of the
Trust Indenture Act shall be deemed to apply to this Indenture as so modified
or shall be excluded, as the case may be.
Section 1.08 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 1.09 SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Issuer shall bind its successors and assigns, whether
so expressed or not.
Section 1.10 SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities 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 1.11 BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
18
Section 1.12 GOVERNING LAW. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
Section 1.13 LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, sinking fund payment date, Stated Maturity or
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities 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 interest or principal (and premium and any other amounts, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day or on such other day as may be set out with
respect to the Securities of a series in the Series Supplement applicable to
such series at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, sinking fund payment date,
Stated Maturity or Maturity, as the case may be, PROVIDED that no interest
shall accrue on the amount so payable 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, if payment is made on such next
succeeding Business Day or other day set out in such Officer's Certificate or
in any Series Supplement with respect to a series of the Securities.
Section 1.14 NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Issuer shall not have any liability
for any obligations of the Issuer under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each Securityholder, by accepting a Security, waives and releases all
such liability. Such waivers and releases are part of the consideration for the
issuance of the Securities.
Section 1.15 AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES. By the execution and delivery of this Indenture, the
Issuer (i) acknowledges that it will, by separate written instrument, designate
and appoint Nexen Petroleum U.S.A. Inc., 00000 Xxxxx Xxxxx, Xxxxx 000, XX 00,
Xxxxxx, Xxxxx 00000 (and any successor entity) as its authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to this Indenture or the Securities that may be instituted in any
Federal or state court in the State of New York, the City of New York, the
Borough of Manhattan, or brought under federal or state securities laws, and
acknowledges that Nexen Petroleum U.S.A. Inc. will accept such designation,
(ii) submits to the jurisdiction of any such court in any such suit or
proceeding, and (iii) agrees that service of process upon Nexen Petroleum
U.S.A. Inc. and written notice of said service to the Issuer in accordance with
Section 1.05 shall be deemed in every respect effective service of process upon
the Issuer in any such suit or proceeding.
To the extent that the Issuer 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, it
hereby irrevocably waives such
19
immunity in respect of its obligations under the above-referenced documents, to
the extent permitted by law.
By the execution and delivery of this Indenture, the Trustee (i)
acknowledges that it will, by separate written instrument, designate and
appoint Deutsche Bank AG, Toronto Branch, 00 Xxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxx, Xxxxxx M5K E7 (and any successor entity) as its authorized agent upon
which process may be served in any suit or proceeding arising out of or
relating to this Indenture or the Securities that may be instituted in any
provincial court in the Province of Ontario, or brought under Canadian federal
or Canadian provincial securities laws, and acknowledges that Deutsche Bank AG
will accept such designation, (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 Deutsche Bank AG and written notice of said service to the Trustee
in accordance with Section 1.05 shall be deemed in every respect effective
service of process upon the Trustee in any such suit or proceeding.
Section 1.16 JUDGMENT CURRENCY. The Issuer agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of, or premium, other amounts or interest, if
any, on the Securities of any series (the "REQUIRED CURRENCY") into a currency
in which a judgment will be rendered (the "JUDGMENT CURRENCY"), the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding that
on which a final unappealable judgment is given and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by judgment
being obtained for any other sum due under this Indenture. For purposes of the
foregoing, "NEW YORK BANKING DAY" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
Section 1.17 COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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ARTICLE 2
SECURITY FORMS
Section 2.01 FORMS GENERALLY. The Securities of each series shall
be in substantially the form as shall be established by or pursuant to a Series
Supplement, 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, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to clause (i) or (ii) of the second
sentence of Section 3.01, a copy of such Board Resolution or an appropriate
record of such action shall be certified by the Secretary or an Assistant
Secretary of the Issuer and delivered to the Trustee at or prior to the
delivery of the Issuer Order contemplated by Section 3.03 or Section 3.04 for
the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.
Section 2.02 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The
Trustee's certificate of authentication shall be in substantially the following
form:
Dated: _______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------------
As Trustee
By
----------------------------------
Authorized Signatory
Section 2.03 SECURITIES IN GLOBAL FORM. If Securities of or
within a series are issuable in whole or in part in global form, then any such
Security of such series may provide that it shall represent the aggregate or a
specified amount of the Outstanding Securities of such series from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be reduced
or increased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, or changes in
the rights of Holders, of Outstanding Securities represented thereby shall be
made in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Issuer Order to be delivered to the
21
Trustee pursuant to Section 3.03 or Section 3.04. Subject to the provisions of
Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Issuer Order. If an Issuer Order pursuant to Section 3.03 or 3.04
has been, or simultaneously is, delivered, any instructions by the Issuer with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 1.02 and need not be
accompanied by an Opinion of Counsel.
The provisions of the third to last paragraph of Section 3.03 shall
apply to any Security represented by a Security in global form if such Security
was never issued and sold by the Issuer and the Issuer delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby.
Notwithstanding the provisions of Sections 2.01 and 3.07, unless
otherwise specified as contemplated by Section 3.01, payment of principal of
and premium and other amounts, if any, and interest on any Security in
permanent global form shall be made to the Person or Persons specified therein.
Section 2.04 FORM OF LEGEND FOR THE SECURITIES IN GLOBAL FORM.
Any Security in global form authenticated and delivered hereunder shall bear a
legend in substantially the following form, or in such other form as may be
necessary or appropriate to reflect the arrangements with or to comply with the
requirements of any Depositary:
"THIS SECURITY IS IN GLOBAL FORM WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. UNLESS
AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
22
ARTICLE 3
THE SECURITIES
Section 3.01 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.
Prior to the issuance of Securities of any series, there shall be established
in or pursuant to (i) a Board Resolution of the Issuer, (ii) actions taken
pursuant to a Board Resolution of the Issuer and (subject to Section 3.03) set
forth, or determined in the manner provided, in an Officer's Certificate with
respect to the Issuer, or (iii) one or more indentures supplemental hereto
(each of (i), (ii) and (iii), a "SERIES SUPPLEMENT"):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) the purchase price, denomination and any limit upon the
aggregate principal amount of the Securities of the series which 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 Sections 3.04,
3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal of and premium and
other amounts, if any, on the Securities of the series is payable or the method
of determination thereof;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the method of payment of interest (in particular, whether the
interest will be paid in kind or otherwise), the date or dates from which such
interest shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date, if any, for the interest payable on any
Interest Payment Date;
(5) the place or places where, subject to the provisions of
Section 10.02, the principal of, premium and other amounts, if any, and
interest, if any, on Securities of the series shall be payable;
(6) the place or places where the Securities may be exchanged or
transferred and notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served;
(7) the period or periods within which, the price or prices at
which, the currency or currencies (including currency unit or units) in which,
and the other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Issuer, and, if other than
as provided in Section 11.03, the manner in
23
which the particular Securities of such series (if less than all Securities of
such series are to be redeemed) are to be selected for redemption;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series in whole or in part pursuant to any sinking
fund or analogous provisions or upon the happening of a specified event,
passage of time, or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms and conditions
upon which Securities of the series shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than U.S. dollars, the currency or currencies
(including currency unit or units) in which payments of principal of, premium
and other amounts, if any, and interest on the Securities of the series shall
or may by payable, or in which the Securities of the series shall be
denominated, and the particular provisions applicable thereto;
(11) if the payments of principal of, premium and other amounts,
if any, or interest on the Securities of the series are to be made, at the
election of the Issuer or a Holder, in a currency or currencies (including
currency unit or units) other than that in which such Securities are
denominated or designated to be payable, the currency or currencies (including
currency unit or units) in which such payments are to be made, the terms and
conditions of such payments and the manner in which the exchange rate with
respect to such payments shall be determined, and the particular provisions
applicable thereto;
(12) if the amount of payments of principal of, premium and other
amounts, if any, and interest on the Securities of the series shall be
determined with reference to an index, formula or other method (which index,
formula or method may be based, without limitation, on a currency or currencies
(including currency unit or units) other than that in which the Securities of
the series are denominated or designated to be payable), the index, formula or
other method by which such amounts shall be determined;
(13) if other than the full principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or
the method by which such portion shall be determined;
(14) any modifications of or additions to the Events of Default or
the covenants of the Issuer set forth herein with respect to Securities of the
series; and whether and the conditions under which the Holders of the
Securities of the series may waive any such Event of Default or compliance with
any such covenant relating to the Securities of such series;
(15) if either or both of Section 13.02 and Section 13.03 shall be
inapplicable, in whole or in part, to the Securities of the series (PROVIDED
that if no such
24
inapplicability shall be specified, then both Section 13.02 and Section 13.03
shall be applicable to the Securities of the series); and any modification to
either such section as it relates to such series of Securities;
(16) if other than the Trustee, the identity of the Registrar and
any Paying Agent;
(17) if the Securities of the series shall be issued in whole or
in part in global form, (i) the Depositary for such global Securities, (ii) the
form of any legend in addition to or in lieu of that in Section 2.04 which
shall be borne by such global Security, (iii) whether beneficial owners of
interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (iv) if other than as provided in Section
3.05, the circumstances under which any such exchange may occur;
(18) if the Holders of the Securities of the series may convert or
exchange the Securities of the series into or for securities of the Issuer or
of other entities or other property (or the cash value thereof), the specific
terms of and period during which such conversion or exchange may be made;
(19) any provisions for the satisfaction and discharge of the
Securities of the series, including provisions in addition to or modifying the
provisions of Article 4 as they pertain to Securities of the series;
(20) if the Securities of that series do not bear interest, the
applicable dates for purposes of Section 7.01;
(21) any agents for the series, including trustees, depositories,
authenticating, conversion, calculation or paying agents, transfer agents or
registrars;
(22) the subordination of the Securities of such series to other
indebtedness of the Issuer, including without limitation, the Securities of any
other series; and
(23) any other terms of the series, including any terms which may
be required by or advisable under the laws of the United States of America or
regulations thereunder or advisable (as determined by the Issuer) in connection
with the marketing of Securities of the series.
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided by (i) a
Board Resolution of the Issuer, (ii) actions taken pursuant to a Board
Resolution of the Issuer and (subject to Section 3.03) set forth, or determined
in the manner provided, in an Officer's Certificate or (iii) any such indenture
supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
25
If any of the terms of the Securities of any series are established by
action taken pursuant to clause (i) or (ii) of the first sentence of the
preceding paragraph, a copy of such Board Resolution or an appropriate record
of such action shall be certified by the Secretary or an Assistant Secretary of
the Issuer and delivered to the Trustee at or prior to the delivery of the
corresponding Officer's Certificate setting forth, or providing the manner for
determining, the terms of the Securities of such series, and an appropriate
record of any action taken pursuant thereto in connection with the issuance of
any Securities of such series shall be delivered to the Trustee prior to the
authentication and delivery thereof. Prior to the delivery of a Security of any
series in any such form to the Trustee for the Securities of such series for
authentication, the Issuer shall deliver to such Trustee an Officer's
Certificate of the Issuer dated the date such Certificate is delivered to such
Trustee stating that all conditions precedent provided for in this Indenture
relating to the authentication and delivery of Securities in such forms have
been complied with.
Section 3.02 DENOMINATIONS. The Securities of each series shall
be issuable in registered form without coupons in such denominations as shall
be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
Section 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities shall be executed on behalf of the Issuer by its Designated Officer.
The signature of the Designated Officer on the Securities may be manual or
facsimile. Typographical and other minor errors or defects in any such
reproduction of the seal or any such signature shall not affect the validity or
enforceability of any Security that has been duly authenticated and delivered
by the Trustee.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Issuer shall bind the Issuer,
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.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Securities of any series executed by the
Issuer to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and make such Securities available for
delivery. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 2.01 and 3.01, 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 (d) of the Trust Indenture Act) shall be fully protected in
relying upon, an Opinion of Counsel stating (subject to customary assumptions,
conditions and exceptions):
26
(a) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 3.01, that such terms
have been established in conformity with the provisions of this Indenture; and
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Issuer, enforceable in accordance with their terms, except
to the extent enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws affecting the enforcement of creditors' rights generally and by the effect
of general principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law).
If such terms have been so established, the Trustee shall not be
required to authenticate 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, or in the written opinion of
counsel to the Trustee (which counsel may be an employee of the Trustee) such
authentication may not lawfully be made or would involve the Trustee in
personal liability.
Notwithstanding the provisions of Section 3.01 and of the immediately
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Board Resolution
and the Officer's Certificate otherwise required pursuant to Section 3.01 or
the Issuer Order and Opinion of Counsel otherwise required pursuant to the
second preceding paragraph at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to
be issued.
If the Issuer shall establish pursuant to Section 3.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with this Section and the Issuer Order with respect to the
authentication and delivery of such series, authenticate and deliver one or
more Securities of such series in global form that (i) shall be in an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Security or Securities in global form,
(ii) shall be registered in the name of the Depositary for such Security or
Securities in global form or its nominee, and (iii) shall be made available for
delivery by the Trustee to such Depositary or pursuant to such Depositary's
instruction.
If all the Securities of any one series are not to be issued at one
time and if a Board Resolution relating to such Securities shall so permit,
such Issuer Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities, including, without limitation, procedures with
respect to interest rate, Stated Maturity, date of issuance and date from which
interest, if any, shall accrue.
27
Unless otherwise provided for in the form of Security, each Security
shall be dated the date of its authentication.
No Security shall be entitled to any benefits under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature, 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 Issuer,
and the Issuer shall deliver such Security to the Trustee for cancellation as
provided in Section 3.09 together with a written statement (which need not
comply with Section 1.02 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Issuer, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall not be entitled to the benefits
of this Indenture.
In case any Securities shall have been authenticated, but not
delivered, by the Trustee or the Authenticating Agent for such series then in
office, any successor by merger, conversion or consolidation to such Trustee,
or any successor Authenticating Agent, as the case may be, may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee or successor Authenticating Agent had itself
authenticated such Securities.
Each Depositary designated pursuant to Section 3.01 for a Security in
global form must, at the time of its designation and at all times while it
serves as Depositary, be a clearing agency registered under the Exchange Act
and any other applicable statute or regulation.
Section 3.04 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon an Issuer
Order the Trustee shall authenticate and make available for delivery, temporary
Securities of such series which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination, with like
terms and conditions as the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may
be in global form, representing all or a portion of the Outstanding Securities
of such series.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions thereof), if temporary
Securities of any series are issued, the Issuer will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series,
28
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 Issuer 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, the Issuer shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and of like terms and conditions. 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.
Section 3.05 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency to be maintained by the Issuer in accordance with
Section 10.02 in a Place of Payment a register (the register maintained in such
office and in any other office or agency of the Issuer 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 Issuer
shall provide for the registration of Securities and of registration of
transfers of Securities. The Trustee is hereby appointed "SECURITY REGISTRAR"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Issuer in a Place of Payment for that
series, the Issuer shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity and
with like terms and conditions.
At the option of the Holder, Securities of any series (except a
Security in global form) may be exchanged for other Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and Stated Maturity and with like terms and conditions, upon surrender
of the Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and make available for delivery, the Securities
which the Holder making the exchange is entitled to receive.
Each Security issued in global form authenticated under this Indenture
shall be registered in the name of the Depositary designated for such series or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Security issued in global form shall
constitute a single Security for all purposes of this Indenture.
Notwithstanding any other provision of this Section or Section 3.04,
unless and until it is exchanged in whole or in part for Securities in
certificated form in the circumstances described below, a Security in global
form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or by such Depositary or any
29
such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for the Securities of a series notifies
the Issuer that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for the Securities
of such series shall no longer be eligible to perform such duties, the Issuer
shall appoint a successor Depositary with respect to the Securities of such
series. If (i) a successor Depositary for the Securities of such series is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, (ii) the Issuer delivers to the Trustee
for the Securities of such series in registered form an Issuer Order stating
that the Securities of such series shall be exchangeable, or (iii) an Event of
Default under Section 5.01 hereof has occurred and is continuing with respect
to the Securities of such series, then the Issuer's selection pursuant to
Section 3.01(17) shall no longer be effective with respect to the Securities of
such series, and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of certificated Securities of
such series of like tenor and like terms and conditions, shall authenticate and
deliver Securities of such series of like tenor and with like terms and
conditions in certificated form, in authorized denominations and in an
aggregate principal amount equal to the principal amount of the Security or
Securities of such series of like tenor and like terms and conditions in global
form in exchange for such Security or Securities in global form.
The Issuer may at any time in its sole discretion determine that
Securities issued in global form shall no longer be represented by such a
Security or Securities in global form. In such event the Issuer shall execute,
and the Trustee, upon receipt of an Issuer Order for the authentication and
delivery of certificated Securities of such series of like tenor and like terms
and conditions, shall authenticate and deliver, Securities of such series of
like tenor and like terms and conditions in certificated form, in authorized
denominations and in an aggregate principal amount equal to the principal
amount of the Security or Securities of such series of like tenor and like
terms and conditions in global form in exchange for such Security or Securities
in global form.
If specified by the Issuer pursuant to Section 3.01 with respect to a
series of Securities, the Depositary for such series may surrender a Security
in global form of such series in exchange in whole or in part for Securities of
such series in certificated form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge, but subject to Section 6.07,
(i) to each Person specified by such Depositary a new certified
Security or Securities of the same series of like tenor and like terms and
conditions, of any authorized denomination as requested by such Person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Security in global form; and
(ii) to such Depositary a new Security in global form of like
tenor and like terms and conditions in a denomination equal to the difference,
if any, between the
30
principal amount of the surrendered Security in global form and the aggregate
principal amount of certificated Securities delivered to Holders thereof.
Upon the exchange of a Security in global form for Securities in
certificated form, such Security in global form shall be canceled by the
Trustee. Securities issued in exchange for a Security in global form pursuant
to this Section shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the Persons
in whose names such Securities are so registered.
Whenever any Securities are surrendered for exchange, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, 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 Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by the
Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Securities to be transferred or
exchanged, no service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer or the Trustee 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 3.04, 9.06 or 11.07 not
involving any transfer.
In the event of any redemption of any series, the Issuer shall not be
required to (i) issue, register the transfer of or exchange the Securities of
any series during a period beginning 15 days before the mailing of a notice of
redemption of Securities of that series to be redeemed or, with respect to
which a Holder has exercised an option to require repurchase of the Security
prior to the Stated Maturity thereof, and ending on the date of the mailing; or
(ii) register the transfer of or exchange any Security, or portion thereof,
called for redemption or, with respect to which a Holder has exercised an
option to require repurchase of the Security, prior to the Stated Maturity
thereof, except the unredeemed portion or portion not being repurchased of any
Security being redeemed or repurchased in part.
The foregoing provisions relating to registration, transfer and
exchange may be modified, supplemented or superseded with respect to any series
of Securities by the Series Supplement for such series.
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Section 3.06 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
(i) any mutilated Security is surrendered to the Trustee for such Security or
the Issuer and the Trustee for a Security receive evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) there
is delivered to the Issuer, the Paying Agent and such Trustee such security or
indemnity as may be required by them to hold each of them and any agent of
either of them harmless, then, in the absence of notice to the Issuer or any
Responsible Officer of such Trustee that such Security has been acquired by a
BONA FIDE purchaser, the Issuer shall execute and upon its request such Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security or in exchange for such mutilated Security, a new Security of the same
series and in a like principal amount and of a like Stated Maturity and with
like terms and conditions, and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuer, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 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.
Section 3.07 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any 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 that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") 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 may be paid by the Issuer, at its election in each
case, as provided in Clause (1) or (2) below:
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(1) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or their
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 Issuer shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security of
such series and the date of the proposed payment (which shall be not less than
25 days after the receipt by the Trustee of such notice, unless such Trustee
shall consent to an earlier date), and at the same time the Issuer shall
deposit with the Trustee an amount of money in Applicable Currency equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements reasonably satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted 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 Issuer of such Special
Record Date and, in the name and at the reasonable expense of the Issuer, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
of Securities of such series at his address as it appears in the Security
Register, 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 mailed, such Defaulted Interest shall be paid to the
Persons in whose names the 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 Issuer may make payment of any Defaulted Interest on the
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 Issuer to the Trustee of the proposed payment pursuant to this
Clause (2), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, 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 3.08 PERSONS DEEMED OWNERS. Prior to due presentment of a
Security for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of, premium and other amounts, if any, and (subject to Sections
3.05 and 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Issuer, the Trustee
nor any agent of the Issuer or the Trustee shall be affected by notice to the
contrary.
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None of the Issuer, the Trustee or any agent of the Issuer or the
Trustee shall have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interest of a Security in global form, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
Notwithstanding anything to the contrary in this Indenture, the Depositary or
its nominee, as Holder of a Security in global form, may grant proxies and
otherwise authorize any Person (including owners of beneficial interests in the
Securities) to take any action that the Depositary or its nominee, as Holder of
a Security in global form, is entitled to take under this Indenture or the
Securities, provided further that with respect to any Security in global form,
nothing herein shall prevent the Issuer or the Trustee or any agent of the
Issuer or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Security in global form or impair, as between such
Depositary and owners of beneficial interests in such Security in global form,
the operation of customary practices governing the exercise of the right of
such Depositary (or its nominee) as holder of such Security in global form.
Section 3.09 CANCELLATION. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Issuer may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Issuer may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities shall
be held by the Trustee and may be destroyed (and, if so destroyed,
certification of their destruction shall be delivered to the Issuer, unless, by
an Issuer Order, the Issuer shall direct that canceled Securities be returned
to them).
Section 3.10 COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30-day months. For the purpose of disclosure under the
INTEREST ACT (Canada) only, each rate of interest which is calculated with
reference to a period (the "deemed interest period") that is less than the
actual number of days in the calendar year of calculation is equivalent to a
rate based on a calendar year calculated by multiplying such rate of interest
by the actual number of days in the calendar year of calculation and dividing
by the number of days in the deemed interest period.
Section 3.11 CUSIP NUMBER. The Issuer in issuing Securities of
any series may use a "CUSIP" number, and if so, the Trustee may use the CUSIP
number in notices of redemption or exchange or other correspondence with
holders as a convenience to Holders of such series; PROVIDED, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed on the notice or on the Securities of such
series, and that reliance may be placed only on the other
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identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee of any change in the CUSIP number of any series of
Securities.
Section 3.12 WIRE TRANSFERS. Notwithstanding any other provision
to the contrary in this Indenture, the Issuer may make any payment of moneys
required to be deposited with the Trustee on account of principal of, or
premium and other amounts, if any, or interest on the Securities (whether
pursuant to optional or mandatory redemption payments, interest payments or
otherwise) by wire transfer of immediately available funds to an account
designated by the Trustee on or before the date and time such moneys are to be
paid to the Holders of the Securities in accordance with the terms hereof.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
(a) This Indenture shall cease to be of further effect with
respect to a series of Securities when the Trustee, upon Issuer Request and at
the expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either (a) all Securities of such series theretofore
authenticated and delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as provided in Section
10.04) have been delivered to the Trustee for cancellation; or (b) all such
Securities not theretofore delivered to the Trustee for cancellation (i) have
become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) have been called for redemption within one
year under arrangements reasonably satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the reasonable
expense, of the Issuer, and the Issuer, in the case of (b)(i), (ii) or (iii)
above, has irrevocably deposited with the Trustee as trust funds in trust for
the purpose cash in the Applicable Currency or, in the case of a series of
Securities payable in dollars, U.S. Government Obligations in an amount
certified to be sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal, premium and other amounts, if any, and interest to the date of such
deposit (in the case of Securities which have become due and payable) or the
Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer has paid or caused to be paid all other
sums payable hereunder by the Issuer and has delivered irrevocable instructions
to the Trustee to apply the deposited amounts to the payment of such Securities
at Stated Maturity or redemption, as applicable;
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(3) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred on the date of deposit and such
deposit will not result in a breach or violation of, or constitute a default
under, any other instruments to which any Issuer is a party or to which it is
bound; and
(4) the Issuer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of
this Indenture with respect to such Securities have been complied with.
(b) Notwithstanding the satisfaction and discharge of this
Indenture with respect to a series of Securities:
(i) Until no notes of such series of Securities are
outstanding, (1) the obligations of the Issuer to any Authenticating Agent
under Section 6.14, (2) if money shall have been deposited with the Trustee
pursuant to clause (a)(1)(b) of this Section, the obligations of the Trustee
and any Paying Agent under Section 4.02 and the last paragraph of Section 10.04
and (3) the obligations of the Issuer under this Article 4, Sections 3.03,
3.05, 3.06, 3.07, 7.01, 7.02, 10.01, 10.02 and the last paragraph of Section
10.04 shall survive, in each case, with respect to such series of Securities.
(ii) After no notes of such series of Securities are
outstanding, (1) the obligations of the Issuer to the Trustee under Section
6.07 and (2) the obligations of the Issuer under this Article 4 shall survive.
Section 4.02 APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.04, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium and other amounts, if any) and
interest for whose payment such money has been deposited with or received by
the Trustee, but such money need not be segregated from other funds except to
the extent required by law.
Section 4.03 REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any cash in accordance with this Article 4 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Issuer's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Article 4 until such time as the Trustee or Paying Agent is permitted to apply
all such cash in accordance with Article 4; PROVIDED, HOWEVER, that if the
Issuer has made any payment of interest on, premium and other amounts, if any,
principal or other amounts, if any, of any Securities because of the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held
by the trustee or Paying Agent.
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Section 4.04 APPLICATION TO A SPECIFIC SERIES OF SECURITIES. The
Issuer may elect to satisfy and discharge its obligations with respect to a
specific series of Securities under the Indenture by complying with the terms
of Article 4. If the Issuer makes such election, (a) the terms of Section 4.01,
4.02 and 4.03 shall apply only to the specific series of Securities and the
terms of the Indenture as it relates to such series of Securities and (b) the
other Securities issued hereunder and the Indenture as it relates to such other
Securities shall remain in full force and effect.
ARTICLE 5
REMEDIES
Section 5.01 EVENTS OF DEFAULT. Except as otherwise specified as
contemplated by Section 3.01 for Securities of a series, "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 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):
(1) the Issuer defaults in the payment of interest on any
Security of that series when such interest becomes due and payable and the
default continues for a period of 30 days; PROVIDED, however, that a valid
extension by the Issuer of an interest payment period for the Securities of
such series in accordance with the terms of the Series Supplement of such
Series shall not constitute a default in the payment of interest for this
purpose;
(2) the Issuer defaults in the payment of the principal of, or
premium or other amounts, if any, on any Security of that series when the same
becomes due and payable at Maturity or on redemption or otherwise;
(3) the Issuer fails to deposit any sinking fund payment after it
becomes due by the terms of a Security of that series;
(4) the Issuer fails to observe or perform any of its other
covenants, agreements or warranties in the Securities of that series or this
Indenture (other than a covenant, agreement or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with or which has expressly been included in this Indenture solely for the
benefit of a series of Securities other than that series), and the failure to
observe or perform continues for the period and after the notice specified in
the last paragraph of this Section;
(5) the Issuer pursuant to or within the meaning of any
Bankruptcy Law (a) commences a voluntary case or proceeding under any
Bankruptcy Law with respect to itself, (b) consents to the entry of a judgment,
decree or order for relief against it in an involuntary case or proceeding
under any Bankruptcy Law, (c) consents to or acquiesces in the institution of
bankruptcy or insolvency proceedings against it, (d) applies for, consents to
or acquiesces in the appointment of or taking possession by a
37
Custodian of it or for all or substantially all of the property of the Issuer,
(e) makes a general assignment for the benefit of its creditors, (f) admits in
writing to an inability to pay its debts as they become due or (g) takes any
corporate action in furtherance of or to facilitate, conditionally or
otherwise, any of the foregoing;
(6) (i) a court of competent jurisdiction enters a judgment,
decree or order for relief in an involuntary case or proceeding under any
Bankruptcy Law which shall (a) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Issuer, (b) appoint a Custodian of the Issuer for all or substantially all of
the property of the Issuer, or (c) order the winding-up or liquidation of
affairs of the Issuer, and such judgment, decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or (ii) any bankruptcy or
insolvency petition or application is filed, or any bankruptcy or insolvency
proceeding is commenced, against the Issuer and such petition, application or
proceeding is not dismissed within 60 days; or (iii) a warrant of attachment is
issued against any material portion of the property of the Issuer which is not
released within 60 days of service; or (iv) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that is for relief in an
involuntary case against the Issuer;
(7) if an event of default (as defined in any indenture or
instrument under which the Issuer or any of its Restricted Subsidiaries has at
the time of this Indenture or shall thereafter have outstanding any
Indebtedness for Borrowed Money) shall happen and be continuing, or the Issuer
or any of its Restricted Subsidiaries shall have failed to pay principal
amounts with respect to such indebtedness at maturity and such event of default
or failure to pay shall result in such indebtedness being declared due and
payable or otherwise being accelerated, in either event so that an amount in
excess of the greater of $75,000,000 and 7.5% of the Shareholders' Equity of
the Issuer shall be or become due and payable upon such declaration or
otherwise accelerated prior to the date on which the same would otherwise have
become due and payable (the "ACCELERATED INDEBTEDNESS"), and such acceleration
shall not be rescinded or annulled, or such event of default or failure to pay
under such indenture or instrument shall not be remedied or cured, whether by
payment or otherwise, or waived by the holders of such Accelerated
Indebtedness, then (a) if the Accelerated Indebtedness shall be as a result of
an event of default which is not related to the failure to pay principal or
interest on the terms, at the times and on the conditions set out in any such
indenture or instrument, it shall not be considered an Event of Default for
purposes of this Indenture until 30 days after notice to the Issuer from the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of a series demanding that such Event of Default be
remedied, or (b) if the Accelerated Indebtedness shall occur as a result of
such failure to pay principal or interest or as a result of an event of default
which is related to the failure to pay principal or interest on the terms, at
the times, and on the conditions set out in any such indenture or instrument,
then (i) if such Accelerated Indebtedness is, by its terms, Non-Recourse Debt
to the Issuer or its Restricted Subsidiaries, it shall not be considered an
Event of Default for purposes of this Indenture; or (ii) if such Accelerated
Indebtedness is recourse to the Issuer or its Restricted Subsidiaries, any
requirement in connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any further
condition, event or act under such other
38
indenture or instrument in connection with such failure to pay principal or an
event of default shall be applicable together with an additional seven days
after notice to the Issuer from the Trustee or the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities of a series demanding
that such Event of Default be remedied before being considered an Event of
Default for purposes of this Indenture; or
(8) any other Event of Default provided with respect to
Securities of that series.
A Default under clause (4) above is not an Event of Default until the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of that series notify the Issuer of the Default and the
Issuer does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default". When a Default under clause (4) above is
cured within such 60-day period, it ceases to be a Default. The Trustee shall
not be charged with knowledge of any default or Event of Default unless a
Responsible Officer of the Trustee shall have actual knowledge or the Trustee
receives written notice of the same.
Section 5.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series (other than an
Event of Default specified in clause (5) or (6) of Section 5.01) occurs and is
continuing, the Trustee by notice in writing to the Issuer, or the Holders of
at least 25% in aggregate principal amount of the Securities of that series
then Outstanding by notice in writing to the Issuer and the Trustee, may
declare the unpaid principal of and interest accrued thereon to the date of
acceleration and premium and other amounts, if any, thereon (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) on all
the Securities of that series then Outstanding to be due and payable
immediately and, upon any such declaration, all the Securities of that series
then Outstanding (or specified principal amount) shall become and be
immediately due and payable.
If an Event of Default specified in clause (5) or (6) of Section 5.01
occurs, all unpaid principal of, interest, premium and other amounts, if any,
accrued on all the Securities of that series then Outstanding shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder of any Security of that series.
Upon payment of all such principal of, interest, premium, if any, and
other amounts, all of the Issuer's obligations under the Securities of that
series and (upon payment of the Securities of all series) this Indenture shall
terminate, except the obligations of the Issuer under Section 6.07.
At any time after a declaration of acceleration of Maturity with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series
39
by notice to the Trustee may rescind an acceleration and its consequences
(except with respect to non-payment of principal, premium, interest or other
amounts, if any) if (i) all existing Events of Default, other than the
nonpayment of the principal of the Securities of that series that has become
due solely by such declaration of acceleration, have been cured or waived as
provided herein; provided that no such rescission shall affect any subsequent
Default or Event of Default or impair any right consequent thereon, (ii) the
Issuer has paid or deposited with the Trustee a sum sufficient to pay in
Applicable Currency: (A) all overdue interest on all Securities of that series,
(B) to the extent payment thereof is lawful, the principal of (and premium and
other amounts, if any, on) any Securities of that series which have become due
otherwise than by such declaration of acceleration and interest thereon from
the date such principal became due at a rate per annum equal to the rate borne
by the Securities of such series (or, in the case of Original Issue Discount
Securities, the Securities' yield to maturity) and (C) to the extent the
payment of such interest is lawful, interest at a rate per annum equal to the
rate borne by the Securities of such series (or, in the case of an Original
Issue Discount Security, the Securities' annual bond-equivalent yield to
maturity) on overdue installments of interest and overdue principal that has
become due otherwise than by such declaration of acceleration have been paid,
(iii) the rescission would not conflict with any judgment or decree of a court
of competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 6.07 have been made.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because an Event of Default
specified in clause (7) of Section 5.01 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
Issuer 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 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. The Issuer covenants that if:
(1) default is made in the payment of any interest on any
Security of any series when such interest becomes due and payable and such
default continues for a period of 30 days,
(2) default is made in the payment of the principal of (or
premium or other amounts, if any, on) any Security of any series at the
Maturity thereof, or
(3) default is made in the payment of any sinking or analogous
obligation when the same becomes due by the terms of the Securities of any
series, and any such default continues for any period of grace provided with
respect to the Securities of such series,
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the Issuer will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium and other amounts, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium and other amounts, if any) and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and 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 Issuer 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 Issuer or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series 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 series
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 secure any other proper remedy.
Section 5.04 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 Issuer or any other obligor upon the Securities or
the property of the Issuer or of such other obligor or its 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 Issuer
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal
(and premium and other amounts, if any) and interest 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 agent and counsel) and of the Holders allowed in such
judicial proceedings,
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and
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(iii) unless prohibited by law of applicable regulations, to vote
on behalf of the Holders of the Securities of such series in any election of a
trustee in bankruptcy or other person performing similar functions; 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 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 6.07.
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, except as aforesaid,
for the election of a trustee in bankruptcy or other person performing similar
functions.
Section 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 in respect of which
such judgment has been recovered.
Section 5.06 APPLICATION OF MONEY COLLECTED. Any money collected
by the Trustee pursuant to this Article in respect of the Securities of any
series 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, premium or other amounts, if any, or interest, upon presentation of
the Securities in respect of which moneys have been collected 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
6.07 applicable to such series;
SECOND: To the payment of the amounts then due and unpaid for
principal of, and premium and other amounts, if any, and interest on the
Securities of such series 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 of such series for
principal, and premium and other amounts, if any, and interest, respectively;
and
THIRD: To the Person or Persons entitled thereto.
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The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 5.06. At least ten (10) days before such
record date, the Trustee shall mail to each Holder and the Issuer a notice that
states the record date, the payment date and the amount to be paid.
Section 5.07 LIMITATION ON SUITS. No Holder of any Security of
any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, 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;
(2) the Holders of at least 25% in principal amount of the
Outstanding Securities of that series 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;
(3) such Holder or Holders shall 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 in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of Holders of Securities
of any series 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 of such Holders, 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 affected series.
Section 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, OTHER AMOUNTS AND INTEREST. Notwithstanding any other provision in
this Indenture, the Holder of any Security shall have the right, which is
absolute and unconditional, to receive payment of the principal of, premium,
other amounts, if any, and (subject to Section 3.07) interest on such Security
on the Stated Maturity or Maturities expressed in such Security (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 5.09 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture
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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 Issuer, the
Trustee and the Holders 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 has been
instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders 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 5.11 DELAY OR OMISSION NOT WAIVER. No delay or omission
of the Trustee or of any Holder of any Securities 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 5.12 CONTROL BY HOLDERS. The Holders of a majority in
principal amount of the Outstanding Securities of any 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, with respect to the Securities of such series, PROVIDED that:
(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) subject to Section 6.01, the Trustee need not take any action
which might involve the Trustee in personal liability or be unduly prejudicial
to the Holders not joining therein.
Section 5.13 WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may by written notice to the Trustee on behalf of the Holders of all the
Securities of such series waive any Default or Event of Default with respect to
such series and its consequences, except a Default or Event of Default:
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(1) in respect of the payment of the principal of or premium,
other amounts, if any, or interest on any Security of such series, or
(2) in respect of a covenant or other provision hereof which
under Article 9 cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such Default or Event of Default shall cease to
exist and shall be deemed to have been cured, for every purpose of this
Indenture and the Securities of such series; but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any right
consequent thereon.
Section 5.14 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, 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; but the provisions of this
Section 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 more
than ten percent in principal amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or premium or other amounts, if any, or interest on
any Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE 6
THE TRUSTEE
Section 6.01 CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.
(a) Except during the continuance of an Event of Default, of
which a Responsible Officer has actual knowledge or the Trustee receives
written notice of, the Trustee's duties, responsibilities, covenants and
obligations under this Indenture shall (i) be governed by Section 315(a) of the
Trust Indenture Act and (ii) not include any further duties, responsibilities,
covenants or obligations except those expressly set forth therein and herein.
(b) In case an Event of Default has occurred and is continuing,
and is known to the Trustee, the Trustee shall exercise the rights and powers
vested in it by this Indenture, and shall use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
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(c) None of the provisions of Section 315(d) of the Trust
Indenture Act shall be excluded from this Indenture.
(d) Every provision of this Indenture which pertains to the
Trustee shall be subject to this Section 6.01.
(e) The Trustee shall not be a trustee for, or have any fiduciary
obligation to, the Issuer.
Section 6.02 NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default or Event of Default with respect to the Securities of
any series, the Trustee shall give to all Holders of Securities of such series,
as their names and addresses appear in the Security Register, notice of such
Default or Event of Default known to the Trustee, unless such Default or Event
of Default shall have been cured or waived; PROVIDED, HOWEVER, that, except in
the case of a Default or Event of Default in the payment of the principal of or
premium, other amounts, if any, or interest on any Security of such series, or
in the deposit of any sinking fund payment with respect to Securities of that
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 determine
that the withholding of such notice is in the interest of the Holders of
Securities of such series.
Section 6.03 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions
of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be fully
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;
(b) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) 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 Officer's Certificate and such certificate, in
the absence of bad faith on the part of the Trustee, shall be full warrant to
the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(d) the Trustee may consult with counsel 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;
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(e) 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee satisfactory security or indemnity satisfactory to
it against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) prior to the occurrence of an Event of Default with respect
to the Securities of any series and after the curing or waiving of all such
Events of Default which may have occurred, 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, approval or other paper or document, or the books
and records of the Issuer, unless requested in writing to do so by the Holders
of a majority in principal amount of the Outstanding Securities of any series;
PROVIDED, HOWEVER, that if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in the making
of such investigation is not, in the opinion of the Trustee, reasonably assured
to the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require indemnity satisfactory to it against such costs,
expenses or liabilities as a condition to so proceeding; the reasonable expense
of every such investigation shall be paid by the Issuer or, if paid by the
Trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(h) the Trustee shall not be required to expend or risk its own
funds or otherwise incur any liability, financial or otherwise, in the
performance of any of its duties hereunder, or in the exercise of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or indemnity satisfactory to it against such risk or liability is
not reasonably assured to it;
(i) the Trustee shall not be liable for any error of judgment
made in good faith by an officer or officers of the Trustee, unless it shall be
conclusively determined by a court of competent jurisdiction that the Trustee
was negligent in ascertaining the pertinent facts;
(j) 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 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
with respect to such Securities given under this Indenture;
(k) the Trustee shall have no obligation to invest and reinvest
any cash held by it in the absence of timely and specific written investment
direction from the
47
Issuer. In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon. The Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of
any investment prior to its stated maturity or the failure of the Issuer to
provide timely written investment direction;
(l) neither the Trustee nor any of its officers, directors,
employees or agents shall be liable for any action taken or omitted under this
Indenture or in connection therewith except to the extent caused by the
Trustee's negligence or willful misconduct, as determined by the final judgment
of a court of competent jurisdiction;
(m) for so long as the Trustee shall serve as Security Registrar
and Paying Agent, it shall be afforded in such capacities, the same rights,
protections, immunities and indemnities provided the Trustee herein; and
Section 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
and neither the Trustee nor any Authenticating Agent or Paying 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,
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 or to be made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer
are true and accurate. Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Issuer of Securities or the
proceeds thereof.
Section 6.05 MAY HOLD SECURITIES. The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the
Issuer, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise
deal with the Issuer with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder (including amounts held by the Trustee as Paying Agent) 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 upon in writing with the Issuer.
Section 6.07 COMPENSATION AND REIMBURSEMENT. The Issuer agrees:
(1) to pay to the Trustee from time to time reasonable
compensation as agreed in writing between the Issuer and the Trustee for all
services 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);
48
(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 the provisions of
this Indenture and any other document executed in connection herewith
(including the reasonable compensation and the expenses and disbursements of
its agents, counsel and all other persons not regularly in its employ), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and its officers, directors,
employees, representatives and agents for, and to hold it and them harmless
against, and reimburse it and them for any obligation, injuries (to person,
property, or natural resources), penalty, action, suit, judgment, reasonable
cost and expense (including reasonable attorney's and agent's fees and
expenses), loss, liability, damage, claim or expense, including taxes (other
than taxes based upon or determined or measured by the income of the Trustee),
of whatever kind or nature, regardless of their merit 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, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.01(5) or Section 5.01(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Bankruptcy Law.
The provisions of this Section 6.07 shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
Section 6.08 DISQUALIFICATION; CONFLICTING INTERESTS. The Trustee
shall be disqualified only where such disqualification is required by Section
310(b) of the Trust Indenture Act. Nothing shall prevent the Trustee from
filing with the Commission the application referred to in the second to last
paragraph of Section 310(b) of the Trust Indenture Act.
Section 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall
at all times be a Trustee hereunder which shall be eligible to act as Trustee
under Section 310(a)(1) of the Trust Indenture Act having a combined capital
and surplus (together with its parent) of at least $100,000,000 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, 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. Neither of the Issuer nor any Person directly
or indirectly controlling, controlled by, or under common control with the
Issuer may serve as Trustee. If at any time the Trustee shall cease to be
eligible in
49
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.10 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 6.11.
(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
Issuer. If the instrument of acceptance by a successor Trustee required by
Section 6.11 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 a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Issuer.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act after written request therefor by the Issuer or by
any Holder who has been a bona fide Holder of a Security of such series of
Securities for at least six months unless the Trustee's duty to resign is
stayed in accordance with the provisions of Section 310(b) of the TIA;
(ii) the Trustee shall cease to be eligible under Section
6.09 and shall fail to resign after written request therefor by the Issuer or
by any such Holder of a Security who has been a bona fide Holder of a Security
of such series of Securities for at least six months; or
(iii) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Issuer by Board Resolutions may remove the
Trustee with respect to all Securities, or (ii) subject to Section 315(e) of
the Trust Indenture Act, any Holder who has been a bona fide Holder of a
Security of such series of Securities for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities 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
50
the Securities of one or more series, the Issuer, by Board Resolutions, 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) and shall comply with the applicable
requirements of Section 6.11. 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 Issuer and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Issuer with respect to
such Securities. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Issuer or the Holders and accepted
appointment in the manner required by Section 6.11, 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 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 Issuer 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
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. 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 6.11 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 Issuer 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 Issuer or the successor Trustee, such retiring Trustee shall, upon
payment of fees, expenses and indemnification amounts, if any, then due and
payable, 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.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of some (but not all) series, the Issuer, the
retiring Trustee and each successor Trustee with respect to the Securities of
such series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept
51
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 Issuer 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.
(c) Upon request of any such successor Trustee, the Issuer shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such 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 the Trust Indenture Act and this Article 6.
Section 6.12 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 succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED 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, consolidation or otherwise as permitted hereunder) 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.
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Section 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE
ISSUER. The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 6.14 APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the Securities remain Outstanding the Trustee, at the expense of
the Issuer, may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of, and
subject to the direction of, the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and 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. 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 Issuer 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 (together with its parent) of not less than $100,000,000 and subject to
supervision or examination by federal or State authority. If such
Authenticating Agent 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, the combined capital and surplus of such
Authenticating Agent 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, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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 such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the parties hereto or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Issuer. 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 Issuer. 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
53
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to
time reasonable compensation as negotiated between the Issuer and such
Authenticating Agent for its services under this Section.
If an appointment with respect to one or more series of Securities 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:
Form of Authenticating Agent's
Certificate of Authentication
Dated: ____________________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------------------------
As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Signatory
Section 6.15 COMPLIANCE WITH TAX LAWS. The Trustee hereby agrees
to comply with all U.S. Federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium,
other amounts (if any) and interest on the Securities of any series, whether
acting as Trustee, Security Registrar, Paying Agent or otherwise with respect
to the Securities of any series.
54
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.01 ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. With respect to each series of Securities, the Issuer will furnish or
cause to be furnished to the Trustee therefor:
(a) semi-annually, not later than 15 days after the Regular
Record Date for each series of Securities, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Holders of Securities
as of such Regular Record Date (unless the Trustee has such information), or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Series Supplement for
such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer 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;
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar, no
such list shall be required to be furnished.
Section 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar, if so acting for the relevant series of Securities. The
Trustee may destroy any list furnished to it as provided in Section 7.01 upon
receipt of a new list so furnished.
(b) If three or more Holders of Securities of any particular
series (herein referred to as "APPLICANTS") apply in writing to the Trustee,
and furnish to the Trustee reasonable proof that each such applicant has owned
a Security of that series for a period of at least six months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of that series with
respect to their rights under this Indenture or under such Securities and is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either:
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section 7.02(a); or
(ii) inform such applicants as to the approximate number
of Holders of Securities of that series whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
7.02(a), and as to the
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approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of Securities of that series whose name and
address appears in the information preserved at the time by the Trustee in
accordance with Section 7.02(a) a copy of the form of proxy or other
communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or
provision for the payment, of the reasonable expenses of mailing, unless within
five days after such tender the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of
that series or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all objections so
sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities of such series, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor 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 of the Securities of such series in accordance
with Section 7.02(b), 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 7.02(b).
Section 7.03 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the
year 2008, the Trustee shall transmit by mail to all Holders of Securities of
each series as provided in Section 313(c) of the Trust Indenture Act, a brief
report dated as of such reporting date, if required by and in compliance with
Section 313(a) of the Trust Indenture Act. The Trustee shall also comply with
Section 313(b) of the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders of Securities of a series, be filed by the Trustee with
each stock exchange or inter-dealer quotation system upon which any Securities
are listed, with the Commission and with the Issuer. The Issuer will notify the
Trustee when any Securities are listed on any stock exchange or any
inter-dealer quotation system.
56
Section 7.04 REPORTS BY THE ISSUER. The Issuer shall:
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual 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 Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Issuer is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations; and
(2) 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
Issuer with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations.
ARTICLE 8
CONSOLIDATION, MERGER, LEASE, SALE OR TRANSFER
Section 8.01 CERTAIN REQUIREMENTS IN RESPECT TO MERGERS, ETC. The
Issuer will not merge, amalgamate or consolidate with or into any other Person,
or sell, assign, lease, convey or otherwise transfer all or substantially all
of its property and assets to any other Person, or change the jurisdiction
under whose laws the Issuer is organized and existing (a "REINCORPORATION"),
unless, in any such case:
(a) either (i) the Issuer shall be the surviving corporation in
the case of a merger (which term, as used in this Section 8.01, shall not
include an amalgamation or consolidation) and, immediately after such merger,
shall remain a corporation organized and validly existing under the laws of the
same jurisdiction in which it was organized and existing immediately prior to
such merger or (ii) the Person formed by such amalgamation or consolidation, or
into which the Issuer is merged, or to which the Issuer has sold, assigned,
leased, conveyed or otherwise transferred all or substantially all of its
property and assets, or resulting from such Reincorporation is a corporation
(the "SUCCESSOR CORPORATION") organized and validly existing under the laws of
its applicable jurisdiction and shall expressly assume, by supplemental
indenture executed by such successor corporation and delivered by it to the
Trustee, the due and punctual payment of the principal of and premium, if any,)
and interest on, and all other amounts (including, without limitation,
Additional Amounts and Reorganization Additional Amounts (as hereinafter
defined), if any, and sinking fund payments, if any, payable in respect of, the
Securities and the due and punctual performance and observance of all other
covenants and conditions contained in this Indenture and the Securities to be
performed or observed
57
by the Issuer (including, without limitation, the appointment of an agent for
service of process in the United States of America); provided that no such
supplemental indenture shall be required pursuant to the provisions of this
clause (a) if (1) the transaction in question is an amalgamation of the Issuer
with any one or more other corporations, which amalgamation is governed by the
statutes of Canada or any province thereof, as applicable, (2) the successor
corporation is and, immediately prior to such amalgamation, the Issuer was
organized and existing under the laws of Canada or any province thereof, (3)
upon the effectiveness of such amalgamation, the successor corporation shall
have become or shall continue to be (as the case may be), by operation of law
and as expressly provided by the statutes of Canada or any province thereof (as
the case may be) applicable to such amalgamation, liable for the due and
punctual payment of the principal of and premium, if any, and interest on, and
all other amounts (including, without limitation, Additional Amounts, if any,
and Reorganization Additional Amounts, if any, and sinking fund payments, if
any,) payable in respect of, the Securities and the due and punctual
performance and observance of all other covenants and conditions contained in
this Indenture and the Securities to be performed or observed by the Issuer
(including, without limitation, the appointment of an agent for service of
process in the United States of America), and (4) the Issuer shall have
delivered to the Trustee an Opinion of Counsel to the effect set forth in
clauses (1) through (3) above;
(b) the Trustee has received an Opinion of Counsel that such
transaction is upon such terms as substantially to preserve and not to
prejudice any of the rights and powers of the Trustee or of the Holders of
Securities;
(c) there shall exist no condition or event either at the time of
or immediately following such transaction, as to either the Issuer or the
successor corporation, which constitutes or would with the passage of time or
giving of notice or both constitute an Event of Default under this Indenture;
(d) the Issuer shall have delivered to the Trustee an opinion of
outside counsel of nationally recognized standing with respect to matters of
Canadian federal income taxation to the effect that (i) the holders of the
Securities will not recognize income, gain or loss for Canadian federal income
tax purposes as a result of such merger, amalgamation, consolidation, sale,
assignment, lease, conveyance, transfer or Reincorporation, (ii) after such
transaction, any payment or credit by the Issuer or the successor corporation,
as applicable, of the principal of, or premium, if any, or interest on, or any
other amount payable under or in respect of, the Securities to any Holder
thereof will be exempt from Canadian withholding tax if the Holder, for
purposes of the INCOME TAX ACT (Canada) (or any successor law) is or is deemed
to be a non-resident of Canada and deals at arms-length with the Issuer at the
time of such payment or credit, as applicable, and (iii) after such
transaction, Holders of the Securities will be subject to Canadian federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such transaction had not occurred; and
(e) the Issuer shall have delivered to the Trustee an Officer's
Certificate of the Issuer and an Opinion of Counsel each stating that such
merger,
58
amalgamation, consolidation, sale, assignment, lease, conveyance, transfer or
Reincorporation and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with this Indenture and
that all conditions precedent in this Indenture relating to such transaction
have been complied with; provided that, if the successor corporation is not
organized and validly existing under the laws of the United States of America
or any State thereof or the District of Columbia or Canada or any province of
Canada, such successor corporation shall expressly agree, in a supplemental
indenture executed by such successor corporation, (i) to indemnify and hold
harmless each Holder of any Securities from and against (x) any and all present
and future taxes, duties, levies, imposts, fees, assessments or other
governmental charges (including penalties, interest and other liabilities
related thereto) (collectively "TAXES") of whatever nature which may be imposed
on such Holder or required to be withheld or deducted from any payment to such
Holder as a consequence of such merger, amalgamation, consolidation, sale,
assignment, lease, conveyance, transfer or Reincorporation and (y) any and all
costs and expenses arising out of or relating to such merger, amalgamation,
consolidation, sale, assignment, lease, conveyance, transfer or
Reincorporation, and (ii) that the principal of, and premium, if any, and
interest on, and any and all other amounts payable under or in respect of, the
Securities will be paid without withholding or deduction for or on account of
any present or future Taxes of whatever nature imposed, levied, withheld,
assessed or collected by or on behalf of the jurisdiction or jurisdictions in
which such successor corporation is organized, is resident or is deemed for tax
purposes to be resident (each such jurisdiction being hereinafter called an
"APPLICABLE JURISDICTION") or any political subdivision or taxing authority of
or in any Applicable Jurisdiction unless such Taxes are required by any
Applicable Jurisdiction or any political subdivision or taxing authority
thereof or therein to be withheld or deducted, in which case such successor
corporation will pay such additional amounts ("REORGANIZATION ADDITIONAL
AMOUNTS") as may be necessary in order that the net amount paid to each Holder
of any Securities, after such deduction or withholding, will not be less than
the amount which such Holder would have received in accordance with the terms
of the Securities and this Indenture if no such deduction or withholding had
been required. Whenever there is mentioned herein or in any Securities, in any
context, the payment of the principal of, or premium, if any, or interest on,
or in respect of, any Security, such mention shall be deemed to include mention
of the payment of Reorganization Additional Amounts to the extent that, in such
context, Reorganization Additional Amounts are, were or would be payable in
respect thereof pursuant to this Indenture, and express mention of the payment
of Reorganization Additional Amounts in any instance shall not be construed as
excluding Reorganization Additional Amounts in those instances where such
express mention is not made.
Section 8.02 VESTING OF POWERS IN SUCCESSOR. Upon any
consolidation by the Issuer with or merger by the Issuer into any other
corporation or other entity or any conveyance, transfer or lease of all or
substantially all of the property and assets of the Issuer as an entirety or
substantially as an entirety in accordance with Section 8.01, the successor
corporation or other entity formed by such consolidation or into which the
Issuer is merged or the successor corporation or entity or affiliated group of
corporations or entities to which such conveyance, transfer or lease is made
shall succeed to, and be
59
substituted for, and may exercise every right and power of, the Issuer under
this Indenture with the same effect as if such successor corporation or
corporations or entity or entities had been named as the Issuer herein, and
thereafter, except in the case of a lease, the predecessor corporation or
corporations or entity or entities shall be relieved of all obligations and
covenants under this Indenture and the Securities and in the event of such
consolidation, merger, conveyance or transfer, except in the case of a lease,
any such predecessor corporation may be dissolved and liquidated.
Section 8.03 REORGANIZATION ADDITIONAL AMOUNTS.
(a) The Issuer covenants and agrees that, if the Issuer becomes
obligated to pay Reorganization Additional Amounts with respect to the
Securities, the Issuer will (i) at least 10 days prior to each date on which
any payment under or with respect to the Securities is due and payable, deliver
to the Trustee an Officer's Certificate specifying the amount required to be
withheld or deducted in respect of the relevant Taxes, specifying the amount of
Reorganization Additional Amounts that will be so payable, and setting forth
such other information as is necessary to enable the Trustee to pay such
Reorganization Additional Amounts to the Holders of the Securities on the
relevant payment date; (ii) pay such Taxes on or prior to the date for payment
thereof; and (iii) within 15 days after paying the amount referred to in clause
(ii) of this sentence, deliver to the Trustee evidence of such payment and
remittance thereof to the relevant Applicable Jurisdiction or political
subdivision or taxing authority thereof or therein. The Issuer also covenants
and agrees to furnish to each Holder of any Securities and, in the case of
Securities in global form, each beneficial owner of any interest therein (by
mail sent to its registered address or, in the case of any such beneficial
owner, to the address provided by such beneficial owner to the Trustee or the
Issuer for such purpose) a receipt for any Taxes deducted within 30 days after
the date the same are due pursuant to applicable law or regulation; PROVIDED,
HOWEVER, that if no such time is prescribed by applicable law or regulation,
the Issuer has agreed to furnish such information as soon as practicable but in
any event prior to the last day of February in the calendar year subsequent to
the calendar year of payment.
(b) No Reorganization Additional Amounts will be payable with
respect to a payment made to a Holder (such Holder, a "REORGANIZATION EXCLUDED
HOLDER") in respect of the beneficial owner thereof:
(1) which is subject to the relevant Taxes by reason of
the Holder being a resident, domiciliary or national of, or engaged in business
or maintaining a permanent establishment or other physical presence in or
otherwise having some connection with the Applicable Jurisdiction or any
political subdivision thereof otherwise than by the mere holding of Securities
or the receipt of payments thereunder; or
(2) which is subject to the relevant Taxes by reason of
its failure to comply with any certification, identification, information,
documentation or other reporting requirement if compliance is required by law,
regulation, administrative practice or an applicable treaty as a precondition
to exemption from, or a reduction in, the
60
rate of deduction or withholding of, such Taxes (provided, that in the case of
any change in such certification, identification, information, documentation or
other reporting requirement which applies generally to Holders of Securities
who are not resident in the Applicable Jurisdiction, at least 60 days prior to
any such change, the Issuer shall have notified the Trustee, in writing, of
such change and provided the Trustee with such forms or documentation, if any,
as the Holders of the Securities may require to comply with such certification,
identification, information, documentation, or other reporting requirement).
(c) The Issuer will indemnify and hold harmless each Holder
(other than a Reorganization Excluded Holder) and, upon written request,
reimburse each such Holder for the amount, excluding any Reorganization
Additional Amounts that have previously been paid by the Issuer with respect
thereto, of:
(1) any Taxes levied or imposed by the Applicable
Jurisdiction, as described in Section 8.01(e)(ii) 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 Taxes imposed by the Applicable Jurisdiction
with respect to any reimbursement under clause (1) or (2) in this paragraph.
(d) The Issuer covenants and agrees to indemnify the Trustee and
each Paying Agent for, and to hold each of them harmless from and against, any
and all loss, liability, claim, damage and expense incurred without negligence
or willful misconduct on such Person's part and arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer's
Certificate furnished pursuant to the foregoing paragraph Section 8.03(a) or
the failure of the Trustee or any Paying Agent for any reason (other than its
own negligence or willful misconduct) to receive on a timely basis such
Officer's Certificate or any information or documentation requested by it or
otherwise required by applicable law or regulation to be obtained, furnished or
filed in respect of any Taxes.
(e) The obligations of the Issuer under this Section 8.03 shall
survive the payment of the Securities, the resignation or removal of the
Trustee or any Paying Agent and the defeasance, discharge, satisfaction or
other termination of this Indenture.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.01 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without notice to or the consent of any Holders, the Issuer, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or
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more indentures supplemental hereto, in form reasonably satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer
and the assumption by any such successor of the covenants of the Issuer herein
and in the Securities;
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Issuer;
(3) to add any additional Events of Default with respect to all
or any series of Securities (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 expressly being included solely for the benefit of such series);
(4) to add or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons; provided, however, that any such action shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect;
(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;
(6) to secure any or all of the Securities;
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01;
(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
6.11(b);
(9) to cure any ambiguity, defect or inconsistency or to correct
or supplement any provision herein which may be inconsistent with any other
provision herein or to qualify or maintain the qualification of the Indenture
under the Trust Indenture Act;
(10) to make any change that does not materially adversely affect
the interests of the Holders of Securities of any series then Outstanding; or
62
(11) to provide for uncertificated Securities in addition to or in
place of certificated Securities (PROVIDED that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code or in a manner such that the uncertificated Securities are
described in Section 163(f)(2)(B) of such Code).
Upon request of the Issuer, accompanied by Board Resolutions
authorizing the execution of any such supplemental indenture, and upon receipt
by the Trustee of the documents described in (and subject to the last sentence
of) Section 9.03, the Trustee shall join with the Issuer in the execution of
any supplemental indenture authorized or permitted by the terms of this
Indenture.
Section 9.02 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of a majority in aggregate principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture (with the Securities of each series voting as a class),
by Act of said Holders delivered to the Issuer and the Trustee, the Issuer,
when authorized by Board Resolutions, and the Trustee shall, subject to Section
9.03, 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 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 affected thereby,
(1) change the Stated Maturity of the principal of, or premium,
other amounts, if any, or any installment of principal of or premium, other
amounts, if any, or interest on, any Security, or reduce the principal amount
(or accreted value, as the case may be) thereof or the rate of interest thereon
or accretions or any premium or other amounts payable upon the redemption,
repurchase or repayment thereof, or change the manner in which the amount of
any of the foregoing is determined, or reduce the amount of the principal (or
accreted value, as the case may be) that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02,
or change any Place of Payment where, or the Applicable Currency for, or impair
the right to receive payment of principal or a premium, interest or other
amounts, if any, on any Holder's Securities on or after their respective due
dates or to institute suit for the enforcement of any such payment;
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or Defaults or
Events of Default hereunder and their consequences provided for in this
Indenture;
(3) modify any of the provisions of this Section or Sections
5.07, 5.13 or 10.09, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby;
PROVIDED, HOWEVER, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the
63
references to "the Trustee" and concomitant changes in this Section and Section
10.09, or the deletion of this proviso, in accordance with the requirements of
Sections 6.11(b) and 9.01(8);
(4) modify any conversion ratio or otherwise impair conversion
rights with respect to such Outstanding Securities, except as expressly
permitted by the terms of such Outstanding Securities;
(5) modify any redemption provisions applicable to such
Outstanding Securities;
(6) directly or indirectly release any of the collateral or
security interest in respect of such Outstanding Securities, except as
expressly permitted by the terms of such Outstanding Securities; or
(7) change any obligations to pay additional amounts provided in
the terms of such Outstanding Securities.
A supplemental indenture which changes or eliminates any covenant or
other provisions 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.
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 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article,
subject to the last sentence of this Section 9.03. 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 (subject to Section 6.01) shall
be fully protected in relying upon, an Officer's Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. 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 9.04 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.
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Section 9.05 CONFORMITY WITH 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 9.06 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 Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE 10
COVENANTS
Section 10.01 PAYMENT OF SECURITIES. With respect to each series
of Securities, the Issuer will duly and punctually pay the principal of (and
premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements
and conditions contained in, or made in the Indenture for the benefit of, the
Securities of such series.
Section 10.02 MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain an office or agency in each Place of Payment where Securities may be
surrendered for registration of transfer or exchange or for presentation for
payment, where notices and demands to or upon the Issuer in respect of the
Securities and this Indenture may be served. The Issuer will give prompt
written notice to the Trustee of the location, and any change in location, of
such office or agency. If at any time the Issuer shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee as set forth in Section 1.05
hereof.
The Issuer may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Issuer 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.
If Securities of any series are issued in definitive certificated
form, or if the Depositary for such Securities shall so require, the Issuer
will maintain a paying agent and transfer agent for such Securities in New
York.
Section 10.03 COMPLIANCE CERTIFICATES.
(a) The Issuer shall deliver to the Trustee within 120 days after
the end of each fiscal year of the Issuer (which fiscal year currently ends on
December 31), an
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Officer's Certificate stating (i) that a review of the activities of the Issuer
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Issuer and its
Subsidiaries has kept, observed, performed and fulfilled its obligations under
this Indenture, (ii) that, as to each such Officer signing such Officer's
Certificate, to the best of his or her knowledge, the Issuer and its
Subsidiaries has kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and (ii) whether or not the signer knows
of any Default or Event of Default by the Issuer that occurred prior to the end
of the fiscal year and is then continuing. If the signer does know of such a
Default or Event of Default, the certificate shall describe each such Default
or Event of Default and its status and the specific section or sections of this
Indenture in connection with which such Default or Event of Default has
occurred. The Issuer shall also promptly notify the Trustee in writing should
the Issuer's fiscal year be changed so that the end thereof is on any date
other than the date on which the Issuer's fiscal year currently ends. The
certificate need not comply with Section 1.02 hereof, but shall comply with
Section 314(a)(4) of the Trust Indenture Act.
(b) The Issuer shall deliver to the Trustee forthwith upon
becoming aware of a Default or Event of Default (but in no event later than 10
days after the occurrence of each Default or Event of Default that is
continuing), an Officer's Certificate setting forth the details of such Default
or Event of Default and the action that the Issuer proposes to take with
respect thereto and the specific section or sections of this Indenture in
connection with which such Default or Event of Default has occurred.
Section 10.04 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Issuer shall at any time act as its own Paying Agent with respect to any
series of Securities, it will, on or before each due date of the principal of
(and premium and other amounts, if any) or interest 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 Applicable Currency, sufficient to pay the
principal (and premium and other amounts, if any) or interest 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 of its action or failure
so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
(and premium and other amounts, if any) or interest on any Securities of that
series, deposit with a Paying Agent a sum, in the Applicable Currency,
sufficient to pay the principal (and premium and other amounts, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium, other amounts, if any, or
interest, and (unless such Paying Agent is the Trustee) the Issuer will
promptly notify the Trustee of their action or failure to so act.
The Issuer will cause each Paying Agent for any series of Securities
(other than the Trustee) 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:
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(1) hold all sums held by it for the payment of the principal of
(and premium and other amounts, if any) or interest on Securities of that
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 notice of any default by the Issuer (or any
other obligor upon the Securities of that series) in the making of any payment
of principal (and premium and other amounts, if any) or interest on the
Securities of that 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 Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Issuer 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 money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuer, in trust for the payment of the principal of (and premium and
other amounts, if any) or interest on any Security of any series and remaining
unclaimed for one year after such principal (and premium and other amounts, if
any) or interest has become due and payable shall, subject to any applicable
escheat laws, be paid to the Issuer on Issuer Request, or (if then held by the
Issuer) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustees
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 Issuer cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, 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 Issuer.
Section 10.05 CANADIAN WITHOLDING TAXES.
(a) Unless otherwise provided pursuant to Section 3.01, all
payments made by or on behalf of the Issuer 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
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TAXES"), unless the Issuer is required to withhold or deduct Canadian Taxes by
law or by the interpretation or administration thereof by the relevant
governmental authority or agency. If the Issuer 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 Issuer 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 Issuer 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;
or
(3) which is subject to such Canadian Taxes by reason of
its failure to comply with any certification, identification, information,
documentation or other reporting requirement 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 (PROVIDED, that in the case of any change in such
certification, identification, information, documentation or other reporting
requirement which applies generally to Holders of Securities who are not
resident in Canada, at least 60 days prior to any such change, the Issuer shall
have notified the Trustee, in writing, of such change and provided the Trustee
with such forms or documentation, if any, as the Holders of the Securities may
require to comply with such certification, identification, information,
documentation, or other reporting requirement).
The Issuer will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the relevant
authority as and when required in accordance with applicable law.
The Issuer will furnish to the Holders of the Securities, within 30
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 Issuer.
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(b) The Issuer 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 previously
been paid by the Issuer 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.
At least ten (10) days prior to each date on which any
payment under or with respect to the Securities is due and payable, if the
Issuer will be obligated to pay Additional Amounts with respect to such
payment, the Issuer will deliver to the Trustee an Officer's 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 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.
The obligations of the Issuer under this Section 10.05 shall
survive the payment of the Securities, the resignation or removal of the
Trustee or any Paying Agent and the defeasance, discharge, satisfaction or
other termination of this Indenture.
Section 10.06 LIMITATION ON LIENS . Except for Permitted
Encumbrances, (i) the Issuer shall not create, incur, assume or suffer to
exist, nor shall it allow or permit any Restricted Subsidiary to create, incur,
assume or suffer to exist, any Security Interest securing any Indebtedness for
Borrowed Money or interest thereon, upon or with respect to any of its
properties or assets or any income or profits therefrom, whether owned on the
date of this Indenture or hereafter acquired, and (ii) without limitation to
the provisions of clause (i) of this sentence, the Issuer shall not create,
incur, assume or suffer to exist, nor shall it allow or permit any Subsidiary
to create, incur, assume or suffer to exist, any Security Interest securing any
Indebtedness for Borrowed Money or interest thereon, upon or with respect to
any shares of capital stock, Indebtedness or other securities of, or other
ownership interests in, any Restricted Subsidiary, whether owned on the date of
this Indenture or hereafter acquired, unless, in any case described in (i) or
(ii) of this sentence, the Issuer or such Restricted Subsidiary or Subsidiary,
as the case may be, shall secure or cause to be secured the Securities equally
and rateably with the Indebtedness for Borrowed Money secured by such Security
Interest.
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Section 10.07 PAYMENT OF TAXES. The Issuer 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
Issuer or any Restricted Subsidiary or upon the income, profits or property of
the Issuer or any Restricted Subsidiary; PROVIDED, HOWEVER, that the Issuer
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 10.08 CORPORATE EXISTENCE. Subject to Article 8, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence.
Section 10.09 WAIVER OF CERTAIN COVENANTS. The Issuer may omit in
any particular instance to comply with any term, provision or condition set
forth in Article 8, Article 10 (other than as required under the Trust
Indenture Act) or any covenant specified as contemplated under Section 3.01
with respect to the Securities of any series if before the time for such
compliance the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance 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 Issuer and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.01 APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article;
PROVIDED, HOWEVER, that if any provision of any such form of Security shall
conflict with any provision of this Article, the provision of such form of
Security shall govern.
Section 11.02 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election
of the Issuer to redeem any Securities shall be evidenced by Board Resolutions.
In case of any redemption at the election of the Issuer of less than all the
Securities of any series, the Issuer shall, at least 30 and not more than 60
days prior to the Redemption Date fixed by the Issuer (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
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 Issuer shall furnish the Trustee with
Officer's Certificates evidencing compliance with such restriction.
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Section 11.03 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 prior to the giving of
the applicable notice of redemption to Holders by the Trustee, from the
Outstanding Securities of such series not previously called for redemption,
substantially pro rata, by lot or by any other method as the Trustee considers
fair and appropriate and that complies with the requirements of the principal
national securities exchange, if any, on which such Securities are listed, and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series; PROVIDED that in case the Securities of such series have different
terms and maturities, the Securities to be redeemed shall be selected by the
Issuer, and the Issuer shall give notice thereof to the Trustee.
The Trustee shall promptly notify the Issuer 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 the Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in part,
to the portion of the principal amount of such Securities which has been or is
to be redeemed.
Section 11.04 NOTICE OF REDEMPTION. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(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) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if applicable, that
interest or original issue discount thereon will cease to accrue or accrete on
and after said date;
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the
case; and
(7) the CUSIP number, if any, of the Securities to be redeemed.
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Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
Section 11.05 DEPOSIT OF REDEMPTION PRICE. Prior to any Redemption
Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if
the Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.04) an amount of money in the Applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
Unless any Security by its terms prohibits any sinking fund payment
obligation from being satisfied by delivering and crediting Securities
(including Securities redeemed otherwise than through a sinking fund), the
Issuer may deliver such Securities to the Trustee for crediting against such
payment obligation in accordance with the terms of such Securities and this
Indenture.
Section 11.06 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 Applicable Currency, and from and after such date
(unless the Issuer shall default in the payment of the Redemption Price or
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Issuer at the Redemption Price, together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that installments
of interest 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 Regular
Record Date or Special Record Date according to their terms and the provisions
of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium and other amounts,
if any) shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security.
Section 11.07 SECURITIES REDEEMED IN PART. Any Security which is
to be redeemed only in part shall be surrendered at an office or agency of the
Issuer at a Place of Payment therefor (with, if the Issuer or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar therefor duly executed
by, the Holder thereof or his attorney duly authorized in writing), and the
Issuer 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 and Stated Maturity, of any authorized denomination as
requested by such Holder, and having the same terms and conditions and in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
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Section 11.08 REDEMPTION FOR CHANGES IN CANADIAN TAX LAW. Unless
otherwise specified pursuant to Section 3.01, the Issuer 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 Issuer determines that (a) as a
result of any change in or amendment to the laws (or any regulations or rulings
promulgated thereunder) of Canada or the Applicable Jurisdiction or of any
political subdivision or taxing authority thereof or therein affecting
taxation, or any change in the official position regarding the application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change or amendment is announced or
becomes effective on or after a date or dates specified pursuant to Section
3.01, if any date is so specified, the Issuer has or will become obligated to
pay, on the next succeeding date on which interest is due, Additional Amounts
pursuant to Section 10.05 or Reorganization Additional Amounts pursuant to
Section 8.01, or (b) on or after a date or dates specified pursuant to Section
3.01, 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 Applicable
Jurisdiction 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 Issuer, or
any change, amendment, application or interpretation shall be officially
proposed, which, in any such case, in the Opinion of Counsel to the Issuer,
will result in the Issuer becoming obligated to pay, on the next succeeding
date on which interest is due, Additional Amounts or Reorganization Additional
Amounts with respect to any Security of such series, and (2) in any such case,
the Issuer in its business judgment determines that any such obligation under
paragraph (1) above cannot be avoided by the use of reasonable measures
available to the Issuer; PROVIDED, HOWEVER, that (i) no such notice of
redemption may be given earlier than 60 nor later than 30 days prior to the
earliest date on which the Issuer would be obligated to pay such Additional
Amounts or Reorganization 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 or Reorganization Additional
Amounts remains in effect.
ARTICLE 12
SINKING FUNDS
Section 12.01 APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series, except as otherwise specified as contemplated by
Section 3.01 for Securities of such series; PROVIDED, HOWEVER, that if any
provision of any such form of Security shall conflict with any provision of
this Article, the provision of such form of Security shall govern.
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
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PAYMENT." If provided for by the terms of Securities of any series, the cash
amount of any sinking fund payment may be subject to reduction as provided in
Section 12.02. 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 12.02 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Issuer (1) may deliver Outstanding Securities of a series
(other than any Securities previously called for redemption) and (2) may apply
as a credit Securities of a series which have been redeemed either at the
election of the Issuer 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
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED 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 sinking fund
payment shall be reduced accordingly.
Section 12.03 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less
than 45 days (or such shorter period reasonably acceptable to the Trustee)
prior to each sinking fund payment date for any series of Securities, the
Issuer will deliver to the Trustee an Officer's 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 Applicable Currency and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 12.02 and will also deliver to the Trustee any Securities
to be so delivered (which have not been previously delivered). Not less than 30
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 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Issuer in the manner provided in
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01 APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. Unless as otherwise specified as
contemplated by Section 3.01 for Securities of such series, provision is made
for the inapplicability of, in whole or in part, or any modification to, either
or both of (a) defeasance of the Securities of a series under Section 13.02 or
(b) covenant defeasance of the Securities of a series under Section 13.03, then
the provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article, shall be applicable to the Securities of
such series and the Issuer may at their option by Board Resolutions of the
Issuer, at any
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time, with respect to the Securities of such series elect to have either
Section 13.02 (unless inapplicable) or Section 13.03 (unless inapplicable) be
applied to the Outstanding Securities of such series upon compliance with the
applicable conditions set forth below in this Article.
Section 13.02 DEFEASANCE AND DISCHARGE. Upon the exercise of the
option provided in Section 13.01 to defease the Outstanding Securities of a
particular series, the Issuer shall be discharged from its obligations with
respect to the Outstanding Securities of such series on the date the applicable
conditions set forth in Section 13.04 are satisfied (hereinafter,
"DEFEASANCE"). Defeasance shall mean that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by the Outstanding
Securities of such series and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned
(and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same); PROVIDED, HOWEVER, that the following
rights, obligations, powers, trusts, duties, immunities and indemnities shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 13.04, payments in respect of the principal
of (and premium and other amounts, if any) and interest on such Securities when
such payments are due, (B) the Issuer's obligations with respect to such
Securities under Sections 1.15, 3.04, 3.05, 3.06, 3.07, 7.01, 7.02, 8.03,
10.02, the last paragraph of Sections 10.04, 10.05, Sections 13.05 and 13.06 as
well as any obligation under the terms of the Securities of such series to
maintain a registrar or paying agent, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and the Issuer's obligations with
respect therewith, and (D) this Article. Subject to compliance with this
Article, the Issuer may exercise its option with respect to defeasance under
this Section 13.02 notwithstanding the prior exercise of its option with
respect to covenant defeasance under Section 13.03 in regard to the Securities
of such series.
Section 13.03 COVENANT DEFEASANCE. Upon the exercise of the option
provided in Section 13.01 to obtain a covenant defeasance with respect to the
Outstanding Securities of a particular series, the Issuer shall be released
from its obligations under the covenants contained in Article 10 (other than
the covenants contained in Sections 10.01, 10.02, 10.03(b), 10.05, 10.09 and
the last paragraph of Section 10.04) of this Indenture and, if specified
pursuant to any applicable Series Supplement, its obligations under any other
covenant, with respect to the Outstanding Securities of such series on and
after the date the applicable conditions set forth in Section 13.04 are
satisfied (hereinafter, "COVENANT DEFEASANCE"). Covenant defeasance shall mean
that, with respect to the Outstanding Securities of such series, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenants, whether directly or
indirectly by reason of any reference elsewhere herein or by reason of any
reference to any other provision herein or in any other document, and such
omission to comply shall not constitute an Event of Default under Section
5.01(4) or any such Series Supplement with respect to Outstanding Securities of
such series, and the remainder of this Indenture and of the Securities of such
series shall be unaffected thereby.
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Section 13.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to defeasance under Section 13.02 and
covenant defeasance under Section 13.03 with respect to the Outstanding
Securities of a particular series:
(1) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee, under the terms of an irrevocable trust agreement
in form and substance reasonably satisfactory to such Trustee, 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
Securities, (A) money in the Applicable Currency in an amount, or (B) if the
Applicable Currency of such Securities is U.S. dollars, U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than the
due date of any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, after payment of all applicable federal, provincial,
territorial, state and local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
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 and other amounts, if any, on) and each installment
of principal of (and premium and other amounts, if any) and interest on the
Outstanding Securities of such series on the Stated Maturity of such principal
or installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to the Outstanding Securities of such
series on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities. Notwithstanding anything
herein to the contrary, the Issuer shall be entitled to direct the Trustee to
use, and the Trustee shall thereafter cause, the trust funds deposited in
accordance with the first sentence of this Section 13.04(1) to effect a
redemption in accordance with Section 11.08 hereof.
(2) No Default or Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit or, in the case of
bankruptcy or insolvency proceedings, at any time during the period ending on
the day which is the later of (i) three months and one day after the date of
such deposit and (ii) 91 days after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) the Issuer shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Issuer with the intent
of preferring the holders of the Securities over the other creditors of the
Issuer, with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuer or others.
(4) Such deposit, defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under this
Indenture, or any other material debt agreement or instrument to which the
Issuer is a party or by which it is bound.
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(5) In the case of an election with respect to Section 13.02, the
Issuer shall have delivered to the Trustee (A) an Opinion of Counsel, such
counsel to be a U.S. Person, based on a ruling from the Internal Revenue
Service or on a change in the applicable U.S. federal income tax law since the
date of this Indenture, in either case to the effect that the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for U.S. federal income tax purposes as a result of such 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 defeasance had not
occurred and (B) an Opinion of Counsel, such counsel to be a Canadian Person,
to the effect that the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Canadian federal income tax
purposes as a result of such defeasance and will be subject to Canadian 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.
(6) In the case of an election with respect to Section 13.03, the
Issuer shall have delivered to the Trustee (A) an Opinion of Counsel, such
counsel to be a U.S. Person, to the effect that the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such 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 defeasance had not occurred and
(B) an Opinion of Counsel, such counsel to be a Canadian Person, to the effect
that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Canadian federal income tax purposes as a
result of such defeasance and will be subject to Canadian 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.
(7) In the case of an election with respect to Section 13.02, the
Issuer shall have delivered to the Trustee an Opinion of Counsel, such counsel
to be a Canadian Person, to the effect that any payment or credit by the Issuer
of the principal of or interest on the Securities to a holder thereof will be
exempt from Canadian withholding tax if the holder thereof, for the purposes of
the INCOME TAX ACT (Canada) (or any successor law) is or is deemed to be a
non-resident of Canada and deals at arms' length with the Issuer at the time of
such payment or credit.
(8) In the case of an election with respect to Section 13.03, the
Issuer shall have delivered to the Trustee an Opinion of Counsel, such counsel
to be a Canadian Person, to the effect that any payment or credit by the Issuer
of the principal of or interest on the Securities to a holder thereof will be
exempt from Canadian withholding tax if the holder thereof, for the purposes of
the INCOME TAX ACT (Canada) (or any successor law) is or is deemed to be a
non-resident of Canada and deals at arms' length with the Issuer at the time of
such payment or credit.
(9) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Issuer in connection therewith pursuant to Section 3.01.
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(10) The Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 13.02 or
the covenant defeasance under Section 13.03 (as the case may be) have been
complied with.
Section 13.05 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST. Subject to the provisions of the last paragraph of Section
10.04, all money and Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 13.05, the "TRUSTEE") pursuant to Section 13.04 in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium and other amounts, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 13.04 or the principal and interest received in
respect thereof, other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer from time to time upon Issuer Request any
money or Government Obligations held by it as provided in Section 13.04 with
respect to Securities of any series which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited for the purpose for which
such money or Government Obligations were deposited.
Section 13.06 REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money or U.S. Government Obligations, as the case may be,
in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, including, without limitation, any
prohibition imposed as a result of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally under any
applicable United States federal or State laws, then the obligations under this
Indenture and such Securities from which the Issuer has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money or U.S. Government Obligations, as the case may be, held in
trust pursuant to Section 13.05 with respect to such Securities in accordance
with this Article; PROVIDED, HOWEVER, that if the Issuer makes any payment of
principal of or any premium, other amounts, if any, or interest on any such
Security following such reinstatement of its obligations, the Issuer
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shall be subrogated to the rights (if any) of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations, as the case
may be, so held in trust.
ARTICLE 14
MEETINGS OF HOLDERS OF SECURITIES
Section 14.01 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 14.02 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 14.01, 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 1.06, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Issuer, 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 14.01, 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 Issuer 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.
Section 14.03 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 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 Issuer and its counsel.
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Section 14.04 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 14.02(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 9.02, 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 9.02, 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.
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 14.04, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to
80
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:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) 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 14.05 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provision 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
1.04 and the appointment of any proxy shall be proved in the manner specified
in Section 1.04 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust corporation, bank or banker authorized by
Section 1.04 to certify to the holding of Securities in bearer form. 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 1.04 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 Issuer or by Holders of Securities as provided in Section 14.02(b), in
which case the Issuer 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.
(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; 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.
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(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 14.02 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 14.06 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 14.02 and, if
applicable, Section 14.04. 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 Issuer, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
NEXEN INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By: /s/ Yana Kalachikova
--------------------------------------
Name: Yana Kalachikova
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SCHEDULE A
To the Senior Debt Indenture dated as of May __, 2007 made between Nexen Inc.
and Deutsche Bank Trust Company Americas, as Trustee.
DESIGNATION
Pursuant to a Senior Debt Indenture dated as of May __, 2007 made between Nexen
Inc. (the "Issuer") and Deutsche Bank Trust Company Americas, as amended and
supplemented from time to time, the Issuer hereby designates each of the
following as a "Restricted Subsidiary" pursuant to paragraph (ii) of the
definition thereof:
[LIST ALL RESTRICTED SUBSIDIARIES TO BE DESIGNATED PURSUANT TO PARAGRAPH (ii)
OF THE DEFINITION OF RESTRICTED SUBSIDIARY]
DATED effective this o day of o, o.
NEXEN INC.
Per:
--------------------------
Per:
--------------------------
