EXHIBIT 7.2
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"),
dated as of April __, 2004, by and between Canadian Pacific Railway Company, a
corporation duly organized and existing under the laws of Canada (the
"Corporation"), having its principal office at Xxxxx 000, 000 0xx Xxxxxx, X.X.,
Xxxxxxx, Xxxxxxx X0X 0X0, and The Bank of New York, a New York banking
corporation, as trustee under the Indenture referred to below (the "Trustee").
WHEREAS, the Corporation and the Trustee are parties to that
certain indenture, dated as of October 30, 2001, by and between the Corporation
and the Trustee (the "Indenture"), under which the Corporation may issue from
time to time unsecured debentures, notes or other evidences of indebtedness in
an unlimited aggregate principal amount issuable in one or more series as
provided therein and pursuant to which the Corporation's 6.250% Notes due 2011,
7.125% Debentures due 2031 and 5.75% Debentures due 2033 (collectively, the
"Securities") were issued;
WHEREAS, Section 8.01(9) of the Indenture provides, in part,
that the Corporation may, without the consent of the Holders of any series,
enter into a supplemental indenture in order to, among other things, cure any
ambiguity, correct or supplement any provision of the Indenture which may be
defective or inconsistent with any other provision therein, or to make any other
provisions as may be necessary or desirable, provided that such action shall be
not prejudicial, in any material respect, to the interests of the Holders of the
Securities of any series or the Coupons appertaining thereto;
WHEREAS, Section 9.03 of the Indenture currently reads as
follows:
"The Corporation shall annually within 120 days (or such
longer period as the Trustee in its discretion may consent to) after
the end of its fiscal year furnish to the Trustee a copy of the
consolidated financial statements and of the report of the
Corporation's Auditors thereon which are furnished to the shareholders
of the Corporation. The Trustee shall have no obligation to analyze
such financial statements or to evaluate the financial performance of
the Corporation as indicated therein in any manner whatsoever.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Corporation's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to conclusively rely
exclusively on Officers' Certificates).";
WHEREAS, the Corporation is a wholly owned subsidiary of
Canadian Pacific Railway Limited, a corporation duly organized and existing
under the laws of
Canada ("CPRL"), and does not furnish its consolidated financial statements and
the report of its Auditors thereon to its shareholder, CPRL;
WHEREAS, the Corporation views it to be desirable to correct
such defect in the Indenture and considers that such action shall not be
prejudicial, in any material respect, to the interests of the Holders of the
Securities of any series or the Coupons appertaining thereto;
WHEREAS, the entry into this Supplemental Indenture by the
parties hereto is in all respects permitted by the provisions of the Indenture,
and all things necessary to make this Supplemental Indenture a valid agreement
of the Corporation in accordance with its terms have been done.
The parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms used and not otherwise
defined herein have the respective meanings ascribed to such terms in the
Indenture.
2. EFFECT. This Supplemental Indenture shall become
effective upon its execution and delivery by the parties hereto.
3. DEFINITIONS. Section 1.01 of the Indenture is hereby
amended by adding the following definition immediately following the definition
of "COVENANT DEFEASANCE":
""CPRL" has the meaning specified in Section 9.03(a);".
4. The first paragraph of section 9.03 of the Indenture is
hereby amended and restated in its entirety to read as follows:
"The Corporation shall:
(a) file or cause to be filed with the Trustee, within 15 days
after Canadian Pacific Railway Limited, a corporation duly organized and
existing under the laws of Canada and the sole shareholder of the Corporation
("CPRL"), is required to file the same with the Commission, copies, which may be
in electronic format, 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 CPRL
may be required to file with the Commission pursuant to Section 13 or Section
15(d) of the U.S. Securities Exchange Act of 1934, as amended;
(b) notwithstanding that CPRL may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the U.S.
Securities Exchange Act of 1934, as amended, or otherwise report on an annual
and quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the Commission, shall provide
the Trustee:
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(1) within 90 days (or such longer period as the Trustee
in its discretion may consent to) after the end of
each fiscal year, the information required to be
contained in CPRL's annual reports on Form 20-F, Form
40-F or Form 10-K as applicable (or any successor
form); and
(2) within 45 days (or such longer period as the Trustee
in its discretion may consent to) after the end of
each of the first three fiscal quarters of each
fiscal year, the information required to be contained
in CPRL's reports on Form 6-K (or any successor form)
which, regardless of applicable requirements, shall,
at a minimum, contain such information required to be
provided in quarterly reports under the laws of
Canada or any province thereof to security holders of
a company with securities listed on the Toronto Stock
Exchange, whether or not CPRL has any of its
securities so listed.
Such reports, to the extent permitted by the rules and regulations of the
Commission, will be prepared in accordance with Canadian disclosure requirements
and GAAP; provided, however, that the Corporation shall not be obligated to file
or cause to be filed such reports with the Commission if the Commission does not
permit such filings;
(c) transmit or cause to be transmitted to all Holders of
Registered Securities, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, within 15 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed pursuant to paragraph (a) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission."
5. RESPONSIBILITY OF TRUSTEE. The Trustee shall not be
responsible for the sufficiency of this Supplemental Indenture or as to the due
execution thereof by the Corporation or as to recitals of fact contained herein,
all of which are made solely by the Corporation.
6. GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
7. COUNTERPARTS. This Supplemental Indenture may be executed
in one or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same document.
8. EFFECT ON INDENTURE. This Supplemental Indenture shall
form a part of the Indenture for all purposes and every Holder of Securities
heretofore or hereafter authenticated and delivered shall be bound hereby.
Except as expressly set forth herein, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. In the event of a conflict between
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the terms and conditions of this Supplemental Indenture and the terms and
conditions of the Indenture, then the terms and conditions of this Supplemental
Indenture shall prevail.
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IN WITNESS WHEREOF, the parties have executed this
Supplemental Indenture as of the date first written above.
CANADIAN PACIFIC RAILWAY COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
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