Exhibit 7.2
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NEXEN INC.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
TRUSTEE
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SUBORDINATED DEBT INDENTURE
DATED AS OF _______________ ___, 2003
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NEXEN INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______________ ___, 2003
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
(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) 10.05
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.....................9
Section 1.03 Form of Documents Delivered to Trustee..................10
Section 1.04 Acts of Holders.........................................11
Section 1.05 Notices, Etc., to Trustee and the Issuer................12
Section 1.06 Notice to Holders; Waiver...............................13
Section 1.07 Conflict with Trust Indenture Act.......................13
Section 1.08 Effect of Headings and Table of Contents................14
Section 1.09 Successors and Assigns..................................14
Section 1.10 Separability Clause.....................................14
Section 1.11 Benefits of Indenture...................................14
Section 1.12 Governing Law...........................................14
Section 1.13 Legal Holidays..........................................14
Section 1.14 No Recourse Against Others..............................14
Section 1.15 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.................................15
Section 1.16 Judgment Currency.......................................15
Section 1.17 Counterparts............................................16
ARTICLE 2 Security Forms......................................................16
Section 2.01 Forms Generally.........................................16
Section 2.02 Form of Trustee's Certificate of Authentication.........17
Section 2.03 Securities in Global Form...............................17
Section 2.04 Form of Legend for the Securities in Global Form........18
ARTICLE 3 The Securities......................................................18
Section 3.01 Amount Unlimited; Issuable in Series....................18
Section 3.02 Denominations...........................................21
Section 3.03 Execution, Authentication, Delivery and Dating..........22
Section 3.04 Temporary Securities....................................24
Section 3.05 Registration, Registration of Transfer and Exchange.....24
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities........27
Section 3.07 Payment of Interest; Interest Rights Preserved..........28
Section 3.08 Persons Deemed Owners...................................29
Section 3.09 Cancellation............................................29
Section 3.10 Computation of Interest.................................30
Section 3.11 CUSIP Number............................................30
Section 3.12 Wire Transfers..........................................30
ARTICLE 4 Satisfaction and Discharge..........................................30
Section 4.01 Satisfaction and Discharge of Indenture.................30
Section 4.02 Application of Trust Money..............................32
Section 4.03 Reinstatement...........................................32
Section 4.04 Application to a Specific Series of Securities..........32
ARTICLE 5 Remedies............................................................33
Section 5.01 Events of Default.......................................33
Section 5.02 Acceleration of Maturity; Rescission and Annulment......34
Section 5.03 Collection of Indebtedness and Suits for
Enforcement by Trustee...............................35
Section 5.04 Trustee May File Proofs of Claim........................36
Section 5.05 Trustee May Enforce Claims Without
Possession of Securities.............................37
Section 5.06 Application of Money Collected..........................37
Section 5.07 Limitation on Suits.....................................38
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium, Other Amounts and Interest..................38
Section 5.09 Restoration of Rights and Remedies......................38
Section 5.10 Rights and Remedies Cumulative..........................39
Section 5.11 Delay or Omission Not Waiver............................39
Section 5.12 Control by Holders......................................39
Section 5.13 Waiver of Past Defaults.................................39
Section 5.14 Undertaking for Costs...................................40
ARTICLE 6 The Trustee.........................................................40
Section 6.01 Certain Duties and Responsibilities of the Trustee......40
Section 6.02 Notice of Defaults......................................41
Section 6.03 Certain Rights of Trustee...............................41
Section 6.04 Not Responsible for Recitals or Issuance
of Securities........................................43
Section 6.05 May Hold Securities.....................................43
Section 6.06 Money Held in Trust.....................................43
Section 6.07 Compensation and Reimbursement..........................43
Section 6.08 Disqualification; Conflicting Interests.................44
Section 6.09 Corporate Trustee Required; Eligibility.................44
Section 6.10 Resignation and Removal; Appointment of Successor.......44
Section 6.11 Acceptance of Appointment by Successor..................46
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business...............................47
Section 6.13 Preferential Collection of Claims Against the Issuer....47
Section 6.14 Appointment of Authenticating Agent.....................48
Section 6.15 Compliance with Tax Laws................................49
ARTICLE 7 Holders' Lists and Reports by Trustee and Issuer....................49
Section 7.01 Issuer to Furnish Trustee Names and
Addresses of Holders.................................49
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Section 7.02 Preservation of Information; Communications
to Holders...........................................50
Section 7.03 Reports by Trustee......................................51
Section 7.04 Reports by the Issuer...................................51
ARTICLE 8 Consolidation, Merger, Lease, Sale or Transfer......................52
Section 8.01 Certain Requirements in Respect to Mergers, etc.........52
Section 8.02 Vesting of Powers in Successor..........................54
Section 8.03 Reorganization Additional Amounts.......................55
ARTICLE 9 Supplemental Indentures.............................................56
Section 9.01 Supplemental Indentures Without Consent of Holders......56
Section 9.02 Supplemental Indentures with Consent of Holders.........58
Section 9.03 Execution of Supplemental Indentures....................59
Section 9.04 Effect of Supplemental Indentures.......................59
Section 9.05 Conformity with Trust Indenture Act.....................59
Section 9.06 Reference in Securities to Supplemental Indentures......60
Section 9.07 Subordination Unimpaired................................60
ARTICLE 10 Covenants..........................................................60
Section 10.01 Payment of Securities...................................60
Section 10.02 Maintenance of Office or Agency.........................60
Section 10.03 Compliance Certificates.................................60
Section 10.04 Money for Securities Payments to Be Held in Trust.......61
Section 10.05 Additional Amounts......................................62
Section 10.06 Waiver of Certain Covenants.............................64
ARTICLE 11 Redemption of Securities...........................................65
Section 11.01 Applicability of Article................................65
Section 11.02 Election to Redeem; Notice to Trustee...................65
Section 11.03 Selection by Trustee of Securities to Be Redeemed.......65
Section 11.04 Notice of Redemption....................................65
Section 11.05 Deposit of Redemption Price.............................66
Section 11.06 Securities Payable on Redemption Date...................66
Section 11.07 Securities Redeemed in Part.............................67
Section 11.08 Tax Redemption..........................................67
ARTICLE 12 Sinking Funds......................................................68
Section 12.01 Applicability of Article................................68
Section 12.02 Satisfaction of Sinking Fund Payments with Securities...68
Section 12.03 Redemption of Securities for Sinking Fund...............69
ARTICLE 13 Defeasance and Covenant Defeasance.................................69
Section 13.01 Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance....................69
Section 13.02 Defeasance and Discharge................................69
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Section 13.03 Covenant Defeasance.....................................70
Section 13.04 Conditions to Defeasance or Covenant Defeasance.........70
Section 13.05 Deposited Money and Government Obligations
To Be Held in Trust..................................72
Section 13.06 Reinstatement...........................................73
ARTICLE 14 Subordination......................................................73
Section 14.01 Securities Subordinated to Senior Indebtedness..........73
Section 14.02 Payment over of Proceeds upon Dissolution, etc..........74
Section 14.03 Payment of Senior Indebtedness Before
Payment of Securities................................75
Section 14.04 Payment Permitted If No Default.........................75
Section 14.05 Subrogation to Rights of Holders of
Senior Indebtedness..................................75
Section 14.06 Provisions Solely to Define Relative Rights.............76
Section 14.07 Trustee to Effectuate Subordination.....................76
Section 14.08 No Waiver of Subordination Provisions...................76
Section 14.09 Notice to Trustee.......................................77
Section 14.10 Reliance on Judicial Order or Certificate of
Liquidating Agent....................................77
Section 14.11 Trustee Not Fiduciary for Holders of
Senior Indebtedness..................................78
Section 14.12 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.....................78
Section 14.13 Article Applicable to Paying Agents.....................78
ARTICLE 15 Meetings of Holders of Securities..................................79
Section 15.01 Purposes for which Meetings May Be Called...............79
Section 15.02 Call, Notice and Place of Meetings......................79
Section 15.03 Persons Entitled to Vote at Meetings....................79
Section 15.04 Quorum; Action..........................................79
Section 15.05 Determination of Voting Rights; Conduct and
Adjournment of Meetings..............................81
Section 15.06 Counting Votes and Recording Action of Meetings.........82
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INDENTURE, dated as of _______________ ___, 2003, 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 subordinated
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.
"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.
"CANADIAN TAXES" has the meaning specified in Section 10.05.
2
"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.
"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.
"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.
3
"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.
"GAAP" means generally accepted accounting principles which are in
effect from time to time in Canada.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security is
registered in the Security Register.
"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.
"NEW YORK BANKING DAY" has the meaning specified in Section 1.16.
"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.
4
"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 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
5
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.
"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.
"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.
"PROCEEDING" has the meaning specified in Section 14.02.
"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.
6
"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.
"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.
"REPRESENTATIVE" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Indebtedness.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITIES PAYMENT" has the meaning specified in Section 14.02.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.05.
"SENIOR INDEBTEDNESS" means, with respect to the Issuer, (i)
the principal (including redemption payments), premium, if any, interest and
other payment obligations in respect of (A) indebtedness of the Issuer for money
borrowed and (B) indebtedness evidenced by debentures, bonds, notes or other
similar instruments issued by the Issuer, including any such securities issued
under any indenture or other instrument to which the Issuer is a party
(including, for the avoidance of doubt but subject to clauses (1) and (2) of
this sentence, indentures pursuant to which subordinated debentures have been or
may be issued), (ii) all capital, operating or other lease obligations of the
Issuer, (iii) all obligations of the Issuer issued or assumed as the
7
deferred purchase price of property, all conditional sale obligations of the
Issuer, all hedging agreements and agreements of a similar nature thereto
(including interest rate, currency or commodity swap agreements and commodity
purchase and sale agreements) and all agreements relating to any such
agreements, and all obligations of the Issuer under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business), (iv) all obligations of the Issuer for the reimbursement of
amounts paid pursuant to any letter of credit, banker's acceptance, security
purchase facility or similar credit transaction, (v) all obligations of the type
referred to in clauses (i) through (iv) above of other persons for the payment
of which the Issuer is responsible or liable as obligor, guarantor or otherwise,
and (vi) all obligations of the type referred to in clauses (i) through (v)
above of other persons secured by any lien on any property or asset of the
Issuer (whether or not such obligation is assumed by the Issuer); in each case
in (i) to (vi) above, whether outstanding at the date of this Indenture or
thereafter incurred, except for (1) any such indebtedness that contains express
terms, or is issued under an indenture or other instrument which contains
express terms, providing that it is subordinate to or ranks pari passu with the
Securities or any series thereof and (2) any indebtedness between the Issuer and
its Affiliates. Such Senior Indebtedness shall continue to be Senior
Indebtedness and be entitled to the benefits of the subordination provisions of
this Indenture irrespective of any amendment, modification or waiver of any term
of such Senior Indebtedness and notwithstanding that no express written
subordination agreement may have been entered into between the holders of such
Senior Indebtedness and the Trustee or any of the Holders.
This definition may be modified or superseded in a manner as contemplated by
Section 3.01. For purposes of Sections 1.11 and 9.07 and Article 14, "SENIOR
INDEBTEDNESS" shall mean the Senior Indebtedness of the Issuer of the Securities
in question.
"SERIES SUPPLEMENT" has the meaning specified in Section 3.01.
"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
8
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.
"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
9
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 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
10
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 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
11
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, (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,
12
(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, 27th Floor, Mailstop NYC60-2710, Xxx Xxxx, Xxx
Xxxx 00000-0000 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 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
13
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, the Holders and, to the extent
specifically set forth herein, the holders of Senior Indebtedness, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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
without regard to conflicts of laws principles thereunder that would indicate
the applicability of the laws of any jurisdiction other than such State.
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
14
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 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 X0X 0X0 (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
15
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.
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.
16
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 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.
17
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."
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);
18
(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 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
19
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 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;
20
(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.
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.
21
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):
(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.
22
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.
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
23
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, 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.
24
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 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
25
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 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.
26
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.
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
27
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:
(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
28
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.
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
29
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 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
30
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;
(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;
(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; and
(5) no event or condition shall exist on the date of such deposit
that, pursuant to the provisions of Section 14.02 or 14.03, would prevent the
Issuer from making payments of the principal of or interest on the Securities of
such series on the date of such deposit.
(b) Notwithstanding the satisfaction and discharge of this Indenture
with respect to a series of Securities:
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(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.
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.
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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 to be effected by reason of Article 14
hereof 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 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
33
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; or
(7) 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
34
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 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.
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,
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
35
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
(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
36
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.
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.
37
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 but subject to Article 14, 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 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
38
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:
(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
39
(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.
(c) None of the provisions of Section 315(d) of the Trust Indenture Act
shall be excluded from this Indenture.
40
(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;
(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
41
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 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
42
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);
(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
43
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 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.
44
(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 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
45
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 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
46
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.
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.
47
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 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
48
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.
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:
49
(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 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
50
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
2004, 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.
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
51
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 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
52
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, 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)
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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 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.
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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 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
55
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 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;
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(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
(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
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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 of 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 10.06, 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 references to "the Trustee" and
concomitant changes in this Section and Section 10.06, 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;
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(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;
(7) modify the subordination provisions applicable to the Outstanding
Securities or the definition of "Senior Indebtedness" in a manner adverse to the
Holders of the Outstanding Securities; or
(8) 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.
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.
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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.
Section 9.07 Subordination Unimpaired. This Indenture may not be
amended to alter the subordination of any of the Outstanding Securities without
the written consent of each holder of Senior Indebtedness then outstanding that
would be adversely affected thereby.
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 Officer's Certificate stating (i) that a review of the
activities of the Issuer during the
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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 Additional Amounts.
(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
62
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 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.
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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.
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
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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.
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
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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.
Section 11.08 Tax Redemption. 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 there is more than an
insubstantial risk that the Issuer could be denied the deduction of interest
paid or payable in respect of the Securities in computing the Issuer's income
for the purposes of the Income Tax Act (Canada) or a Canadian provincial or
territorial income tax statute, 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
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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 or there is more than an insubstantial
risk that the Issuer could be denied the deduction of interest paid or payable
in respect of the Securities in computing the Issuer's income for the purpose of
the Income Tax Act (Canada) or a Canadian provincial or territorial income tax
statute, 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 or on which the Issuer would be
denied the deduction of interest paid or payable in respect of the Securities,
and (ii) at the time such notice of redemption is given, such obligation to pay
such Additional Amounts or Reorganization Additional Amounts or such denial of
the deductibility of interest 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 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
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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 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,
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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, 10.06 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.
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
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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.
(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.
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(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.
(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
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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 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
SUBORDINATION
Section 14.01 Securities Subordinated to Senior Indebtedness. Except as
otherwise specified or contemplated by Section 3.01 or the other provisions of
this Indenture, the Issuer covenants and agrees, and each Holder of a Security,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the payment of the
principal of and premium and other amounts, if any, and interest on each and all
of the Securities is hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all
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Senior Indebtedness. The terms of this Article 14 may be modified or amended for
any series of Securities as contemplated by Section 3.01.
Section 14.02 Payment over of Proceeds upon Dissolution, etc. In the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Issuer or to its creditors or to its
assets, or (b) any liquidation, dissolution or other winding up of the Issuer,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Issuer, then and in any such event
specified in (a), (b) or (c) above (each such event, if any, a "PROCEEDING")
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities, on account of principal of or premium and other amounts, if any, or
interest on the Securities or on account of any purchase or other acquisition of
Securities by the Issuer, or any Subsidiary of the Issuer (all such payments,
distributions, purchases and acquisitions herein referred to, individually and
collectively, as a "SECURITIES PAYMENT"), and to that end the holders of all
Senior Indebtedness shall be entitled to receive, for application to the payment
thereof, any Securities Payment which may be payable or deliverable in respect
of the Securities in any such Proceeding.
(2) In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Indebtedness is paid in full or payment
thereof provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, and if the occurrence of the
Proceeding shall, at or prior to the time of such Securities Payment, have been
made known to a Responsible Officer of the Trustee or, as the case may be, such
Holder, then and in such event such Securities Payment shall either (i) be held
in trust for the benefit of holders of Senior Indebtedness or their
Representatives to the extent necessary to make payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of Senior
Indebtedness or (ii) be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Issuer for application to
the payment of all Senior Indebtedness remaining unpaid, to the extent necessary
to pay all Senior Indebtedness in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Issuer provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of
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competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy law or of any other corporation provided for by such plan of
reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Indebtedness to substantially
the same extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article.
The consolidation or amalgamation of the Issuer with, or the merger of
the Issuer into, another Person or the liquidation or dissolution of the Issuer
following the conveyance, transfer, sale or lease of all or substantially all of
its properties and assets to another Person upon the terms and conditions set
forth in Article 8 shall not be deemed a Proceeding for the purposes of this
Section if the Person formed by such consolidation or amalgamation or into which
the Issuer is merged or the Person which acquires by conveyance, transfer, sale
or lease such properties and assets, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer, sale or lease comply with the
conditions set forth in Article 8.
Section 14.03 Payment of Senior Indebtedness Before Payment of
Securities. No payment of principal (including redemption payments) or interest
on any Securities may be made (i) if any Senior Indebtedness of the Issuer is
not paid when due, (ii) if any applicable grace period with respect to a payment
default on Senior Indebtedness of the Issuer has ended and such default has not
been cured or waived or ceased to exist, or (iii) if the maturity of any Senior
Indebtedness of the Issuer has been accelerated because of a default and such
acceleration has not been rescinded and annulled or such Senior Indebtedness
repaid in accordance with its terms.
In the event that, notwithstanding the foregoing, the Issuer shall make
any Securities Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such Securities Payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such Securities Payment shall be paid
over and delivered forthwith to the Issuer.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 14.02 would be applicable.
Section 14.04 Payment Permitted If No Default. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Issuer, at any time except during the pendency of any Proceeding
referred to in Section 14.02 or under the conditions described in Section 14.03,
from making Securities Payments, or (b) the application by the Trustee of any
money deposited with it hereunder to Securities Payments or the retention of
such Securities Payment by the Holders, if at the time of such application by
the Trustee, it did not have actual knowledge that such Securities Payment would
have been prohibited by the provisions of this Article.
Section 14.05 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on or in
respect of Senior Indebtedness, or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of
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the Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
premium and other amounts, if any, and interest on the Securities shall be paid
in full. For purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Issuer, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Issuer to or on account of the Senior Indebtedness.
Section 14.06 Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders of
Senior Indebtedness on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Issuer, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the obligation of the Issuer,
which is absolute and unconditional (and which, subject to the rights under this
Article of the holders of Senior Indebtedness, is intended to rank equally with
all other general obligations of the Issuer), to pay to the Holders of the
Securities the principal of and premium and other amounts, if any, and interest
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Issuer of the Holders of the Securities and creditors of the Issuer other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such holder.
Section 14.07 Trustee to Effectuate Subordination. Each Holder of a
Security by his acceptance thereof authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 14.08 No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring
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responsibility to the Holders of the Securities and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness
or any instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness; (iii)
release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Issuer and any other Person.
Section 14.09 Notice to Trustee. The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer which would prohibit the
making of any payment to or by the Trustee in respect of the Securities.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Issuer or a holder of Senior
Indebtedness or from any trustee therefor or representative thereof; and, prior
to the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that if the
Trustee shall not have received the notice provided for in this Section at least
one full Business Day prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the payment
of the principal of and premium and other amounts, if any, or interest on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within one
full Business Day prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor or representative thereof) to establish that such notice has been given
by a holder of Senior Indebtedness (or a trustee therefor or representative
thereof). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the rights of such Person to receive such payment.
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Issuer referred to in
this
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Article, the Trustee, subject to the provisions of Section 6.01, and the Holders
of the Securities shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Issuer, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 14.11 Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Issuer or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
The Trustee shall not be charged with knowledge of the existence of Senior
Indebtedness or of any facts that would prohibit any payment hereunder unless a
Responsible Officer of the Trustee shall have received notice to that effect at
the address of the Trustee set forth in Section 1.05. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
Section 14.12 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
Section 14.13 Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Issuer
and be then acting hereunder, the term "TRUSTEE" as used in this Article shall
in such case (unless the context otherwise requires) be construed as extending
to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to
or in place of the Trustee; provided, however, that Sections 14.09 and 14.12
shall not apply to the Issuer or any Affiliate of the Issuer if it or such
Affiliate acts as Paying Agent.
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ARTICLE 15
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01 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 15.02 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 15.01, 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 15.01, 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 15.03 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.
Section 15.04 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
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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 15.02(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 15.04, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
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(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 15.05 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 15.02(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.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 15.02 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.
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Section 15.06 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 15.02 and, if applicable, Section 15.04. 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: _____________________________________
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE
By: _____________________________________
Name:
Title:
