EXHIBIT 7.1
-----------
--------------------------------------------------------------------------------
ENCANA HOLDINGS FINANCE CORP.,
as Issuer,
ENCANA CORPORATION,
as Guarantor
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
_________
INDENTURE
Dated as of __________, 2004
Providing for the issue of
Guaranteed Debt Securities
in unlimited principal amount
_________
--------------------------------------------------------------------------------
ENCANA HOLDINGS FINANCE CORP.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF __________, 2004
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) .................................. 608(a)
(a)(2) .................................. 608(a)
(b) .................................. 609,610
Section 312(c) .................................. 703
Section 314(a) .................................. 703
(a)(4) .................................. 1004
(c)(1) .................................. 102
(c)(2) .................................. 102
(e) .................................. 102
Section 315(b) .................................. 601
Section 316(a)(last
Sentence) .................................. 101 ("Outstanding")
(a)(1)(A) .................................. 502, 512
(a)(1)(B) .................................. 513
(b) .................................. 508
(c) .................................. 104(e)
Section 317(a)(1) .................................. 503
(a)(2) .................................. 504
(b) .................................. 1003
Section 318(a) .................................. 111
------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
[Page must remain for formatting purposes]
TABLE OF CONTENTS
PAGE
PARTIES........................................................................1
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions......................................................1
"Accelerated Indebtedness".......................................2
"Act"............................................................2
"Additional Amounts".............................................2
"Affiliate"......................................................2
"Authenticating Agent"...........................................2
"Authorized Newspaper"...........................................2
"Bearer Security"................................................2
"Board of Directors".............................................2
"Board Resolution"...............................................2
"Business Day"...................................................3
"calculation period".............................................3
"Canadian Taxes".................................................3
"Clearstream"....................................................3
"Commission".....................................................3
"Common Depositary"..............................................3
"Company"........................................................3
"Company Officer"................................................3
"Company Request" or "Company Order".............................3
"Consolidated Net Tangible Assets"...............................3
"Conversion Date"................................................4
"Conversion Event"...............................................4
"Corporate Trust Office".........................................4
"corporation"....................................................4
"coupon".........................................................4
"covenant defeasance"............................................4
"Currency".......................................................4
"Current Assets".................................................4
"Default"........................................................4
"Defaulted Interest".............................................4
"defeasance".....................................................4
-------------------
Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
ii
"Depositary" or "Depositary for Securities"......................4
"Dollar" or "$"..................................................4
"Dollar Equivalent of the Foreign Currency"......................4
"Election Date"..................................................4
"Euroclear"......................................................5
"Event of Default"...............................................5
"Exchange Act"...................................................5
"Exchange Date"..................................................5
"Exchange Rate Agent"............................................5
"Exchange Rate Officer's Certificate"............................5
"Excluded Holder"................................................5
"Extension Notice"...............................................5
"Extension Period"...............................................5
"Facilities".....................................................5
"Final Maturity".................................................5
"Financial Instrument Obligations"...............................5
"First Currency".................................................6
"Foreign Currency"...............................................6
"GAAP"...........................................................6
"Government Obligations".........................................6
"Guarantee"......................................................7
"Guarantor"......................................................7
"Holder".........................................................7
"Indenture"......................................................7
"Indexed Security"...............................................7
"interest".......................................................7
"Interest Payment Date"..........................................7
"Judgment Currency"..............................................7
"Lien"...........................................................7
"Market Exchange Rate"...........................................8
"Maturity".......................................................8
"Non-Recourse Debt"..............................................8
"Notice of Default"..............................................8
"Officer's Certificate"..........................................8
"Opinion of Counsel".............................................8
"Optional Reset Date"............................................8
"Original Issue Discount Security"...............................9
"Original Stated Maturity".......................................9
"Other Currency".................................................9
"Outstanding"....................................................9
"Paying Agent"..................................................10
"Permitted Liens"...............................................10
"Person"........................................................12
"Place of Payment"..............................................12
"Predecessor Security"..........................................12
"Purchase Money Mortgage".......................................12
"Redemption Date"...............................................13
"Redemption Price"..............................................13
iii
"Registered Security"...........................................13
"Regular Record Date"...........................................13
"Repayment Date"................................................13
"Repayment Price"...............................................13
"Required Currency".............................................13
"Reset Notice"..................................................13
"Responsible Officer"...........................................13
"Restricted Property"...........................................13
"Restricted Securities".........................................13
"Restricted Subsidiary".........................................14
"Securities"....................................................14
"Security Register" and "Security Registrar"....................14
"Shareholders' Equity"..........................................14
"Special Record Date"...........................................14
"Stated Maturity"...............................................14
"Subsequent Interest Period"....................................14
"Subsidiary"....................................................14
"Substantial Completion"........................................14
"Trust Indenture Act" or "TIA"..................................14
"Trustee".......................................................14
"UCC"...........................................................15
"United States".................................................15
"United States person"..........................................15
"Unrestricted Subsidiary".......................................15
"Valuation Date"................................................15
"Vice-President"................................................15
"Voting Shares".................................................15
"Yield to Maturity".............................................15
Section 102. Compliance Certificates and Opinions............................15
Section 103. Form of Documents Delivered to Trustee..........................16
Section 104. Acts of Holders.................................................17
Section 105. Notices, etc. to Trustee, Company or Guarantor..................18
Section 106. Notice to Holders; Waiver.......................................19
Section 107. Effect of Headings and Table of Contents........................20
Section 108. Successors and Assigns..........................................20
Section 109. Separability Clause.............................................20
Section 110. Benefits of Indenture...........................................20
Section 111. Governing Law...................................................20
Section 112. Legal Holidays..................................................20
Section 113. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities............................................21
Section 114. Conversion of Currency..........................................21
Section 115. Currency Equivalent.............................................23
Section 116. Incorporators, Shareholders, Officers and Directors of
the Company and the Guarantor Exempt from Individual Liability..23
Section 117. Conflict with the Trust Indenture Act...........................23
iv
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.................................................23
Section 202. Form of Trustee's Certificate of Authentication.................24
Section 203. Securities Issuable in Global Form..............................24
Section 204. Form of Guarantee...............................................25
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series............................27
Section 302. Denominations...................................................31
Section 303. Execution, Authentication, Delivery and Dating..................31
Section 304. Temporary Securities............................................34
Section 305. Registration, Registration of Transfer and Exchange.............36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................40
Section 307. Payment of Principal and Interest; Interest Rights Preserved;
Optional Interest Reset.........................................41
Section 308. Optional Extension of Stated Maturity...........................44
Section 309. Persons Deemed Owners...........................................44
Section 310. Cancellation....................................................45
Section 311. Computation of Interest.........................................46
Section 312. Currency and Manner of Payments in Respect of Securities........46
Section 313. Appointment and Resignation of Successor Exchange Rate Agent....48
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.........................49
Section 402. Application of Trust Money......................................50
ARTICLE FIVE
REMEDIES
Section 501. Events of Default...............................................51
Section 502. Acceleration of Maturity; Rescission and Annulment..............52
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................54
Section 504. Trustee May File Proofs of Claim................................54
Section 505. Trustee May Enforce Claims Without Possession of Securities.....55
Section 506. Application of Money Collected..................................55
Section 507. Limitation on Suits.............................................56
Section 508. Unconditional Right of Holders to Receive Principal
(Premium, if any) and Interest..................................56
Section 509. Restoration of Rights and Remedies..............................57
Section 510. Rights and Remedies Cumulative..................................57
v
Section 511. Delay or Omission Not Waiver....................................57
Section 512. Control by Holders..............................................57
Section 513. Waiver of Past Defaults.........................................58
Section 514. Waiver of Stay or Extension Laws................................58
Section 515. Undertaking for Costs...........................................58
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults..............................................59
Section 602. Certain Duties and Responsibilities of Trustee..................59
Section 603. Certain Rights of Trustee.......................................60
Section 604. Trustee Not Responsible for Recitals or Issuance of Securities..62
Section 605. May Hold Securities.............................................62
Section 606. Money Held in Trust.............................................62
Section 607. Compensation and Reimbursement..................................62
Section 608. Corporate Trustee Required; Eligibility.........................63
Section 609. Resignation and Removal; Appointment of Successor...............63
Section 610. Acceptance of Appointment by Successor..........................65
Section 611. Merger, Conversion, Consolidation or Succession to Business.....66
Section 612. Authorization of Authenticating Agent...........................66
Section 613. Conflicting Interests...........................................68
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
Section 701. Company to Furnish Trustee Names and Addresses of Holders.......68
Section 702. Preservation of List of Names and Addresses of Holders..........68
Section 703. Disclosure of Names and Addresses of Holders....................69
Section 704. Reports by Trustee..............................................69
Section 705. Reports by the Guarantor........................................69
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantor May Consolidate, etc., Only on
Certain Terms...................................................70
Section 802. Successor Person Substituted....................................71
Section 803. Securities to Be Secured in Certain Events......................72
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders..............72
Section 902. Supplemental Indentures with Consent of Holders.................74
Section 903. Execution of Supplemental Indentures............................75
vi
Section 904. Effect of Supplemental Indentures...............................75
Section 905. Conformity with the Trust Indenture Act.........................75
Section 906. Reference in Securities to Supplemental Indentures..............75
Section 907. Notice of Supplemental Indentures...............................76
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal (Premium, if any) and Interest.............76
Section 1002. Maintenance of Office or Agency.................................76
Section 1003. Money for Securities Payments to Be Held in Trust...............78
Section 1004. Statement as to Compliance......................................79
Section 1005. Additional Amounts..............................................79
Section 1006. Limitation on Liens.............................................81
Section 1007. Payment of Taxes................................................82
Section 1008. Corporate Existence.............................................82
Section 1009. Waiver of Certain Covenants.....................................82
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article........................................82
Section 1102. Election to Redeem; Notice to Trustee...........................83
Section 1103. Selection by Trustee of Securities to Be Redeemed...............83
Section 1104. Notice of Redemption............................................83
Section 1105. Deposit of Redemption Price.....................................84
Section 1106. Securities Payable on Redemption Date...........................85
Section 1107. Securities Redeemed in Part.....................................85
Section 1108. Tax Redemption..................................................86
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article........................................86
Section 1202. Satisfaction of Sinking Fund Payments with Securities...........87
Section 1203. Redemption of Securities for Sinking Fund.......................87
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article........................................88
Section 1302. Repayment of Securities.........................................88
Section 1303. Exercise of Option..............................................89
Section 1304. When Securities Presented for Repayment Become Due and Payable..89
Section 1305. Securities Repaid in Part.......................................90
vii
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Option to Effect Defeasance or Covenant Defeasance..............90
Section 1402. Defeasance and Discharge........................................91
Section 1403. Covenant Defeasance.............................................91
Section 1404. Conditions to Defeasance or Covenant Defeasance.................92
Section 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions........................94
Section 1406. Reinstatement...................................................95
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.......................95
Section 1502. Call, Notice and Place of Meetings..............................95
Section 1503. Persons Entitled to Vote at Meetings............................96
Section 1504. Quorum; Action..................................................96
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.........................................97
Section 1506. Counting Votes and Recording Action of Meetings.................98
Section 1507. Counterparts....................................................98
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
Section 1601. Guarantee.......................................................99
Section 1602. Execution and Delivery of Guarantees...........................100
TESTIMONIUM..................................................................101
SIGNATURES...................................................................101
FORMS OF CERTIFICATION.................................................EXHIBIT A
INDENTURE, dated as of ___________, 2004 between ENCANA CORPORATION, a
corporation duly organized and existing under the laws of Canada and having its
principal office at 1800, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ (herein called the "GUARANTOR"), ENCANA HOLDINGS FINANCE CORP., an
unlimited liability company duly organized and existing under the laws of the
Province of Nova Scotia, Canada (herein called the "COMPANY"), having its
principal office at 1800, ▇▇▇ - ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York Corporation, as
trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), which may be convertible into or exchangeable for any securities
of any Person (including the Company and the Guarantor), to be issued in one or
more series as provided in this Indenture.
The Guarantor deems it necessary to guarantee the Securities (the
"GUARANTEES") and, to provide therefor, it has duly authorized the execution and
delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of each
of the Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as defined below) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
2
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(5) words implying any gender shall include all genders; and
(6) the words Subsection, Section and Article refer to the
Subsections, Sections and Articles, respectively, of this Indenture unless
otherwise noted.
Certain terms, used principally in Article Three, are defined in that
Article.
"ACCELERATED INDEBTEDNESS" has the meaning specified in Section 501.
"ACT" when used with respect to any Holder, has the meaning specified
in Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 1005.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee pursuant to Section 612 to authenticate Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of Canada,
will, if practicable, be The Globe & Mail, in the case of New York, New York
will, if practicable, be The Wall Street Journal (Eastern Edition), in the case
of the United Kingdom will, if practicable, be The Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg
(Wort), in the English language or in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in
Canada, New York, New York, the United Kingdom or Luxembourg, as applicable.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any
Business Day.
"BEARER SECURITY" means any Security except a Registered Security.
"BOARD OF DIRECTORS" means either the board of directors of the Company
or the Guarantor, as applicable, or any duly authorized committee of such board
of directors.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Corporate Secretary or any Assistant Corporate Secretary of the Company or the
Guarantor, as applicable, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
3
"BUSINESS DAY" when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than Saturday, Sunday or any other day which is not a
day on which commercial banking institutions in that Place of Payment or other
location are closed or required by any applicable law or regulation or executive
order to close.
"CALCULATION PERIOD" has the meaning specified in Section 311.
"CANADIAN TAXES" has the meaning specified in Section 1005.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or its
successor.
"COMMISSION" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY OFFICER" means any one of the Chairman, President, Chief
Executive Officer, Chief Financial Officer, Vice-President, Treasurer, Assistant
Treasurer, Corporate Secretary or Assistant Corporate Secretary of the Guarantor
or any authorized officer of the Company.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request or order
signed in the name of the Company or the Guarantor, as applicable, by a Company
Officer and delivered to the Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
any Person on a consolidated basis (less applicable reserves and other properly
deductible items) after deducting therefrom:
(i) all current liabilities (excluding any indebtedness classified
as a current liability and any current liabilities which are
by their terms extendible or renewable at the option of the
obligor thereon to a time more than 12 months after the time
as of which the amount thereof is being computed);
(ii) all goodwill, trade names, trademarks, patents, unamortized
debt discounts and expenses and other like intangibles; and
(iii) appropriate adjustments on account of minority interests of
other persons holding shares of the Subsidiaries of such
Person,
4
in each case, as shown on the most recent annual audited or quarterly unaudited
consolidated balance sheet of such Person computed in accordance with GAAP.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee, at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as the Trustee may designate from
time to time by notice to the Holders, the Guarantor and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders, the Guarantor and the Company).
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"COVENANT DEFEASANCE" has the meaning specified in Section 1403.
"CURRENCY" means any currency or currencies or composite currency
issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"CURRENT ASSETS" means assets which in the ordinary course of business
are expected to be realized in cash or sold or consumed within 12 months.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" OR "DEPOSITARY FOR SECURITIES" means The Depository Trust
Company, or any successor thereto or any other Person designated pursuant to
Section 301.
"DOLLAR" OR "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning specified
in Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(g).
5
"EUROCLEAR" means Euroclear Bank S.A./N.A., or its successor as
operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"EXCHANGE DATE" has the meaning specified in Section 304.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York clearing house bank, designated pursuant to Section
301 or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex, facsimile
or a certificate setting forth (i) the applicable Market Exchange Rate and (ii)
the Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex or
facsimile) or signed (in the case of a certificate) by the Treasurer, any
Vice-President or any Assistant Treasurer of the Guarantor or any authorized
officer of the Company.
"EXCLUDED HOLDER" has the meaning specified in Section 1005.
"EXTENSION NOTICE" has the meaning specified in Section 308.
"EXTENSION PERIOD" has the meaning specified in Section 308.
"FACILITIES" means any drilling equipment, production equipment and
platforms or mining equipment; pipelines, pumping stations and other pipeline
facilities; terminals, warehouses and storage facilities; bulk plants;
production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities, flares, stacks
and burning towers; floatation ▇▇▇▇▇, crushers and ore handling facilities; tank
cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine,
automotive, aeronautical and other similar moveable facilities or equipment;
computer systems and associated programs or office equipment; roads, airports,
docks (including drydocks); reservoirs and waste disposal facilities; sewers;
generating plants (including power plants) and electric lines; telephone and
telegraph lines, radio and other communications facilities; townsites, housing
facilities, recreation halls, stores and other related facilities; and similar
facilities and equipment of or associated with any of the foregoing.
"FINAL MATURITY" has the meaning specified in Section 308.
"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising under:
(i) interest rate swap agreements, forward rate agreements, floor,
cap or collar agreements, futures or options, insurance or
other similar agreements or arrangements, or any combination
thereof, entered into by a Person
6
relating to interest rates or pursuant to which the price,
value or amount payable thereunder is dependent or based upon
interest rates in effect from time to time or fluctuations in
interest rates occurring from time to time;
(ii) currency swap agreements, cross-currency agreements, forward
agreements, floor, cap or collar agreements, futures or
options, insurance or other similar agreements or
arrangements, or any combination thereof, entered into by a
Person relating to currency exchange rates or pursuant to
which the price, value or amount payable thereunder is
dependent or based upon currency exchange rates in effect from
time to time or fluctuations in currency exchange rates
occurring from time to time; and
(iii) commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar
agreements or arrangements, or any combination thereof,
entered into by a Person relating to one or more commodities
or pursuant to which the price, value or amount payable
thereunder is dependent or based upon the price of one or more
commodities in effect from time to time or fluctuations in the
price of one or more commodities occurring from time to time.
"FIRST CURRENCY" has the meaning specified in Section 115.
"FOREIGN CURRENCY" means any Currency other than Currency of the United
States.
"GAAP" means generally accepted accounting principles in Canada which
are in effect from time to time, unless such Person's most recent audited or
quarterly unaudited financial statements are not prepared in accordance with
generally accepted accounting principles in Canada, in which case GAAP shall
mean generally accepted accounting principles in the United States in effect
from time to time.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, securities which are (i)
direct obligations of the government which issued the Currency in which the
Securities of a particular series are payable or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
PROVIDED that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
7
"GUARANTEE" means, with respect to any particular series of Securities,
any guarantee of the Guarantor as endorsed on a Security of the Company
authenticated and delivered pursuant to this Indenture and shall include the
Guarantee set forth in Section 1601 of this Indenture.
"GUARANTOR" means EnCana Corporation until a successor Person shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Guarantor" shall mean such successor Person.
"HOLDER" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity at the rate prescribed in such Original Issue Discount
Security.
"INTEREST PAYMENT DATE", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 114.
"LIEN" means, with respect to any properties or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
charge, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such properties or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same economic effect
as any of the foregoing).
8
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion of Dollars
into any Foreign Currency, the noon (New York, New York time) buying rate for
such Foreign Currency for cable transfers quoted in New York, New York as
certified for customs purposes by the Federal Reserve Bank of New York and (ii)
for any conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the Exchange Rate Agent.
Unless otherwise specified with respect to any Securities pursuant to Section
301, in the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i) and (ii), the Exchange Rate Agent shall use, in
its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
or another principal market for the Currency in question, or such other
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any Currency by reason of foreign exchange regulations or otherwise,
the market to be used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such securities.
"MATURITY", 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, notice of redemption, notice of option to elect
repayment or otherwise.
"NON-RECOURSE DEBT" means indebtedness to finance the creation,
development, construction or acquisition of properties or assets and any
increases in or extensions, renewals or refinancings of such indebtedness,
provided that the recourse of the lender thereof (including any agent, trustee,
receiver or other Person acting on behalf of such entity) in respect of such
indebtedness is limited in all circumstances to the properties or assets
created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or collateral
connected with the properties or assets created, developed, constructed or
acquired and to which such lender has recourse.
"NOTICE OF DEFAULT" has the meaning specified in Section 501.
"OFFICER'S CERTIFICATE" means a certificate signed by any Company
Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or the Guarantor, including an employee of the Company
or the Guarantor, and who shall be acceptable to the Trustee, acting reasonably.
"OPTIONAL RESET DATE" has the meaning specified in Section 307.
9
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"ORIGINAL STATED MATURITY" has the meaning specified in Section 308.
"OTHER CURRENCY" has the meaning specified in Section 115.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for which money in the
necessary amount relating to payment, redemption or repayment
at the option of the Holders has been deposited with the
Trustee or any Paying Agent (other than the Company or the
Guarantor) in trust or set aside and segregated in trust by
the Company or the Guarantor (if the Company or the Guarantor
shall act as Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto; PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company or the Guarantor, as
the case may be, has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser (as defined
in Article 8 of the UCC) in whose hands such Securities are
valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (B) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate
10
Officer's Certificate delivered to the Trustee, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(A) above) of such Security, (C) the principal amount of any Indexed Security
that may be counted in making such determination or calculation and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (D) Securities owned
by the Company, the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, the Guarantor or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, the Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantor or such other obligor.
"PAYING AGENT" means any Person (including the Company or the Guarantor
acting as Paying Agent) authorized by the Company to pay the principal of (or
premium, if any) or interest, if any, on any Securities on behalf of the
Company.
"PERMITTED LIENS" of any Person at any particular time means:
(i) Liens existing as of the date of this Indenture, or arising
thereafter pursuant to contractual commitments entered into
prior to such date;
(ii) Liens on Current Assets given in the ordinary course of
business to any financial institution or others to secure any
indebtedness payable on demand or maturing (including any
right of extension or renewal) within 12 months from the date
such indebtedness is incurred;
(iii) Liens in connection with indebtedness, which, by its terms, is
Non-Recourse Debt to the Guarantor or any of its Subsidiaries;
(iv) Liens existing on property or assets at the time of
acquisition (including by way of lease) by such Person,
PROVIDED that such Liens were not incurred in anticipation of
such acquisition;
(v) Liens or obligations to incur Liens (including under
indentures, trust deeds and similar instruments) on property
or assets of another Person existing at the time such other
Person becomes a Subsidiary of such Person, or is liquidated
or merged into, or amalgamated or consolidated with, such
Person or Subsidiary of such Person or at the time of the
sale, lease or other disposition to such Person or Subsidiary
of such Person of all or substantially all of the properties
and assets of such other Person, PROVIDED that such Liens were
not incurred in anticipation of such other Person becoming a
Subsidiary of such Person;
11
(vi) Liens upon property or assets of whatsoever nature other than
Restricted Property;
(vii) Liens upon property, assets or facilities used in connection
with, or necessarily incidental to, the purchase, sale,
storage, transportation or distribution of oil or gas, or the
products derived from oil or gas;
(viii) Liens arising under partnership agreements, oil and natural
gas leases, overriding royalty agreements, net profits
agreements, production payment agreements, royalty trust
agreements, master limited partnership agreements, farm-out
agreements, division orders, contracts for the sale, purchase,
exchange, storage, transportation, distribution, gathering or
processing of Restricted Property, unitizations and pooling
designations, declarations, orders and agreements, development
agreements, operating agreements, production sales contracts
(including security in respect of take or pay or similar
obligations thereunder), area of mutual interest agreements,
natural gas balancing or deferred production agreements,
injection, repressuring and recycling agreements, salt water
or other disposal agreements, seismic or geophysical permits
or agreements, which in each of the foregoing cases is
customary in the oil and natural gas business, and other
agreements which are customary in the oil and natural gas
business, PROVIDED in all instances that such Lien is limited
to the property or assets that are the subject of the relevant
agreement;
(ix) Liens on assets or property (including oil sands property)
securing: (A) all or any portion of the cost of acquisition
(directly or indirectly), surveying, exploration, drilling,
development, extraction, operation, production, construction,
alteration, repair or improvement of all or any part of such
assets or property, the plugging and abandonment of ▇▇▇▇▇ and
the decommissioning or removal of structures or facilities
located thereon, and the reclamation and clean-up of such
properties, facilities and interests and surrounding lands
whether or not owned by the Guarantor or its Restricted
Subsidiaries, (B) all or any portion of the cost of acquiring
(directly or indirectly), developing, constructing, altering,
improving, operating or repairing any assets or property (or
improvements on such assets or property) used or to be used in
connection with such assets or property, whether or not
located (or located from time to time) at or on such assets or
property, and (C) indebtedness incurred by the Guarantor or
any of its Subsidiaries to provide funds for the activities
set forth in clauses (A) and (B) above, provided such
indebtedness is incurred prior to, during or within two years
after the completion of acquisition, construction or such
other activities referred to in clauses (A) and (B) above, and
(D) indebtedness incurred by the Guarantor or any of its
Subsidiaries to refinance indebtedness incurred for the
purposes set forth in clauses (A) and (B) above. Without
limiting the generality of the foregoing, costs incurred after
the date hereof with respect to clauses (A) or (B) above shall
include costs incurred for all facilities relating to such
assets or property, or to projects, ventures or other
arrangements of which such assets or
12
property form a part or which relate to such assets or
property, which facilities shall include, without limitation,
Facilities, whether or not inwhole or in part located (or from
time to time located) at or on such assets or property;
(x) Liens granted in the ordinary course of business in connection
with Financial Instrument Obligations;
(xi) Purchase Money Mortgages;
(xii) Liens in favor of the Guarantor or any of its Subsidiaries to
secure indebtedness owed to the Guarantor or any of its
Subsidiaries; and
(xiii) any extension, renewal, alteration, refinancing, replacement,
exchange or refunding (or successive extensions, renewals,
alterations, refinancings, replacements, exchanges or
refundings) of all or part of any Lien referred to in the
foregoing clauses; PROVIDED, HOWEVER, that (A) such new Lien
shall be limited to all or part of the property or assets
which was secured by the prior Lien plus improvements on such
property or assets and (B) the indebtedness, if any, secured
by the new Lien is not increased from the amount of the
indebtedness secured by the prior Lien then existing at the
time of such extension, renewal, alteration, refinancing,
replacement, exchange or refunding, plus an amount necessary
to pay fees and expenses, including premiums, related to such
extensions, renewals, alterations, refinancings, replacements,
exchanges or refundings.
"PERSON" means any individual, corporation, partnership, limited
liability company, unlimited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"PLACE OF PAYMENT" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"PURCHASE MONEY MORTGAGE" of any Person means any Lien created upon any
property or assets of such Person to secure or securing the whole or any part of
the purchase price of such property or assets or the whole or any part of the
cost of constructing or installing fixed improvements thereon or to secure or
securing the repayment of money borrowed to pay the whole or any part of such
purchase price or cost of any vendor's privilege or Lien on such property or
assets securing all or any part of such purchase price or cost including title
retention agreements and leases in the nature of title retention agreements;
provided that (i) the principal
13
amount of money borrowed which is secured by such Lien does not exceed 100% of
such purchase price or cost and any fees incurred in connection therewith, and
(ii) such Lien does not extend to or cover any other property other than such
item of property and any improvements on such item.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security registered in the Security
Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"REQUIRED CURRENCY" has the meaning specified in Section 114.
"RESET NOTICE" has the meaning specified in Section 307.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
director, any managing director, any vice-president, any assistant
vice-president, any associate or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and in each case assigned to or employed by the Trustee's corporate
trust department, and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"RESTRICTED PROPERTY" means any oil, gas or mineral property of a
primary nature located in the United States or Canada, and any facilities
located in the United States or Canada, directly related to the mining,
processing or manufacture of hydrocarbons or minerals, or any of the
constituents thereof, or the derivatives therefrom and includes Voting Shares or
other interests of a corporation or other Person which owns such property or
facilities, but does not include (i) any property or facilities used in
connection with or necessarily incidental to the purchase, sale, storage,
transportation or distribution of Restricted Property, (ii) any property which,
in the opinion of the Board of Directors, is not materially important to the
total business conducted by the Guarantor and its Subsidiaries as an entirety,
or (iii) any portion of a particular property which, in the opinion of the Board
of Directors, is not materially important to the use or operation of such
property.
"RESTRICTED SECURITIES" means shares of stock or indebtedness of any
Restricted Subsidiary.
14
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of the
Guarantor which owns at the time Restricted Property; PROVIDED, HOWEVER, such
term shall not include a Subsidiary of the Guarantor if the amount of the
Guarantor's share of Shareholders' Equity of such Subsidiary constitutes, at the
time of determination, less than 2% of the Consolidated Net Tangible Assets of
the Guarantor.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; PROVIDED, HOWEVER, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SHAREHOLDERS' EQUITY" means the aggregate amount of shareholders'
equity (including but not limited to share capital, contributed surplus and
retained earnings) of a Person as shown on the most recent annual audited or
quarterly unaudited consolidated balance sheet of the Guarantor and computed in
accordance with GAAP.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in Section 307.
"SUBSIDIARY" of any Person means, on any date, any corporation or other
Person of which Voting Shares or other interests carrying more than 50% of the
voting rights attached to all outstanding Voting Shares or other interests are
owned, directly or indirectly, by or for such Person or one or more Subsidiaries
thereof.
"SUBSTANTIAL COMPLETION" means, with respect to an improvement, the
point at which the improvement is ready for use or is being used for the purpose
for which it was intended.
"TRUST INDENTURE ACT" OR "TIA" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except as provided
in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a
15
Trustee hereunder; PROVIDED, HOWEVER, that if at any time there is more than one
such Person, "Trustee" as used with respect to the Securities of any series
shall mean only the Trustee with respect to Securities of that series.
"UCC" means the New York uniform commercial code in effect from time to
time.
"UNITED STATES" means, unless otherwise specified with respect to any
Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not or which has
ceased to be a Restricted Subsidiary.
"VALUATION DATE" has the meaning specified in Section 312(c).
"VICE-PRESIDENT", when used with respect to the Company, the Guarantor
or the Trustee, means any vice-president, whether or not designated by a number
or a word or words added before or after the title "vice-president".
"VOTING SHARES" means shares of any class of any corporation carrying
voting rights under all circumstances, PROVIDED that, for the purposes of this
definition, shares which only carry the right to vote conditionally on the
happening of any event shall not be considered Voting Shares, nor shall any
shares be deemed to cease to be Voting Shares solely by reason of a right to
vote accruing to shares of another class or classes by reason of the happening
of such an event, or solely because the right to vote may not be exercisable
under the charter of the corporation.
"YIELD TO MATURITY" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any written application or written request by the Company or the
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of
16
this Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished, and each such Officer's Certificate or
Opinion of Counsel shall comply with the requirements of the Trust Indenture Act
and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a covenant
or condition provided for in this Indenture (other than pursuant to Section
1004) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
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
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company or the Guarantor stating that the information with respect to such
factual matters is in the possession of the Company or the Guarantor, as the
case may be, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Any certificate or opinion of an officer of the Company, the Guarantor
or of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant or firm of
accountants in the employ of the Company or the Guarantor, unless such officer
or counsel, as the case may be, knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the accounting matters upon which such certificate or opinion may be based are
erroneous.
17
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 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or
more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to
the Company or the Guarantor or both, as applicable. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee, the Company and the Guarantor, if made in the manner
provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him 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 authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to
be satisfactory, showing that at the date therein mentioned such Person
had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or
18
such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee, the Company and the
Guarantor may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount
and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner that the
Trustee deems sufficient.
(e) If either the Company or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company or the
Guarantor, as the case may be, may, at its option, by or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company or the Guarantor, as
the case may be, shall have no obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than
the date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding
Securities shall be computed as of such record date; PROVIDED that no such
authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than eleven months after the record
date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee, the Company or the Guarantor in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE, COMPANY OR GUARANTOR.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other documents provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
19
(2) the Company or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
to the Company or the Guarantor, as the case may be, addressed to it at
the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing to
the Trustee by the Company or the Guarantor.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company, the Guarantor or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impractical to mail
notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given to Holders of Bearer Securities if published in an
Authorized Newspaper in New York, New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date, prescribed for the giving of such notice. Any such notice shall
be deemed to have been given on the date of the first such publication.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
20
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, the
Guarantor and the Trustee shall bind their successors and assigns, whether so
expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the law of the State of New York without regard to
principles of conflicts of law. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date or Stated Maturity or Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if
21
made on the Interest Payment Date or Redemption Date or sinking fund payment
date, or at the Stated Maturity or Maturity; PROVIDED that no additional
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be.
SECTION 113. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER
OF IMMUNITIES.
By the execution and delivery of this Indenture, each of the Company
and the Guarantor (i) acknowledges that it has irrevocably designated and
appointed CT Corporation System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ("CT CORPORATION") as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to the Securities or
this Indenture that may be instituted in any federal or New York state court
located in New York, New York or brought under federal or state securities laws
or brought by the Trustee (whether in its individual capacity or in its capacity
as Trustee hereunder), (ii) submits to the non-exclusive jurisdiction of any
such court in any such suit or proceeding, and (iii) agrees that service of
process upon CT Corporation and written notice of said service to the Company or
the Guarantor, as applicable (mailed or delivered to the Company or the
Guarantor, as applicable, Attention: General Counsel, at its principal office
specified in the first paragraph of this Indenture and in the manner specified
in Section 105 hereof), shall be deemed in every respect effective service of
process upon the Company or the Guarantor, as applicable, in any such suit or
proceeding. Each of the Company and the Guarantor further agrees to take any and
all action, including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
CT Corporation in full force and effect so long as any of the Securities shall
be outstanding.
To the extent that the Company or the Guarantor 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, each of the Company and the Guarantor hereby irrevocably waives such
immunity in respect of its obligations under this Indenture and the Securities,
to the extent permitted by law.
Each of the Company and the Guarantor hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Indenture or
the Securities in any federal or state court in the State of New York, Borough
of Manhattan. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 114. CONVERSION OF CURRENCY.
(a) Each of the Company and the Guarantor covenants and agrees
that the following provisions shall apply to conversion of currency in the
case of the Securities and this Indenture:
22
(1) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes
necessary to convert into any other currency (the "JUDGMENT CURRENCY")
an amount due or contingently due under the Securities of any series
and this Indenture (the "REQUIRED CURRENCY"), then the conversion shall
be made at the rate of exchange prevailing on the Business Day before
the day on which a final judgment which is not appealable or is not
appealed is given or the order of enforcement is made, as the case may
be (unless a court shall otherwise determine).
(2) If there is a change in the rate of exchange
prevailing between the Business Day before the day on which the
judgment referred to in (1) above is given or an order of enforcement
is made, as the case may be (or such other date as a court shall
determine), and the date of receipt of the amount due, the Company or
the Guarantor, as applicable, shall pay such additional (or, as the
case may be, such lesser) amount, if any, as may be necessary so that
the amount paid in the Judgment Currency when converted at the rate of
exchange prevailing on the date of receipt will produce the amount in
the Required Currency originally due.
(b) In the event of the winding-up of the Company or the Guarantor
at any time while any amount or damages owing under the Securities and
this Indenture, or any judgment or order rendered in respect thereof,
shall remain outstanding, the Company or the Guarantor, as the case may
be, shall indemnify and hold the Holders of Securities and the Trustee
harmless against any deficiency arising or resulting from any variation in
rates of exchange between (1) the date as of which the equivalent of the
amount in the Required Currency (other than under this Subsection (b)) is
calculated for the purposes of such winding-up and (2) the final date for
the filing of proofs of claim in such winding-up. For the purpose of this
Subsection (b) the final date for the filing of proofs of claim in the
winding-up of the Company or the Guarantor, as applicable, shall be the
date fixed by the liquidator or otherwise in accordance with the relevant
provisions of applicable law as being the latest practicable date as at
which liabilities of the Company or the Guarantor, as applicable, may be
ascertained for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(2) and (b) of
this Section shall constitute separate and independent obligations of
either the Company or the Guarantor from its other obligations under the
Securities and this Indenture, shall give rise to separate and independent
causes of action against the Company or the Guarantor, shall apply
irrespective of any waiver or extension granted by any Holder or Trustee
from time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of claim
in the winding-up of the Company or the Guarantor for a liquidated sum in
respect of amounts due hereunder (other than under Subsection (b) above)
or under any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual loss
shall be required by the Company, the Guarantor or the applicable
liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be reduced by any variation
23
in rates of exchange occurring between the said final date and the date of
any liquidating distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean the Bank of Canada
noon rate for purchases on the relevant date of the Required Currency with
the Judgment Currency, as reported on the "Exchange Rates--Daily noon
rates" page of the website of Bank of Canada (or by such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of
the parties to this Indenture) and includes any premiums and costs of
exchange payable.
SECTION 115. CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER Currency") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported on the "Exchange Rates--Daily noon rates" page of the
website of Bank of Canada (or by such other means of reporting the Bank of
Canada noon rate as may be agreed upon by each of the parties to this Indenture)
on the date of determination.
SECTION 116. INCORPORATORS, SHAREHOLDERS, OFFICERS AND DIRECTORS
OF THE COMPANY AND THE GUARANTOR EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security or Guarantee, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future shareholder, officer or director, as
such, of the Company or the Guarantor, as the case may be, or of any successor,
either directly or through the Company or the Guarantor or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders as part of the consideration for the issue of the
Securities.
SECTION 117. CONFLICT WITH THE TRUST INDENTURE ACT.
If and to the extent that any provision hereof limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 318, inclusive, of
the Trust Indenture Act, through operation of Section 318(c) thereof, such
imposed duties shall control.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, in each case
24
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
The definitive Securities, coupons and Guarantees shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of authentication
shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated and referred to
in, and issued under, the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By _______________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified and contemplated by Section 301, then, notwithstanding clause (8) of
Section 301 and Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be
25
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon written
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon written instructions given by the Person or
Persons specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
SECTION 204. FORM OF GUARANTEE.
The Guarantee to be endorsed on any Security issued by the Company,
subject to Section 201, shall be in substantially the form set forth below:
GUARANTEE
OF
ENCANA CORPORATION
For value received, EnCana Corporation, a corporation duly organized
and existing under the laws of Canada (herein called the "Guarantor", which term
includes any successor Person under the Indenture referred to in the Security
upon which this Guarantee is endorsed), hereby unconditionally and irrevocably
guarantees to the Holder of the Security upon which this Guarantee is endorsed
and to the Trustee on behalf of each such Holder the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on such Security
when and as the same shall become due and payable, whether on the Stated
Maturity Date or by declaration of acceleration, notice of redemption or
otherwise, according to the terms thereof and of the Indenture referred to
therein. In case of the failure of EnCana Holdings Finance Corp., an unlimited
liability company duly organized and existing under the laws of the Province of
Nova Scotia, Canada (herein called the "Company", which term includes any
successor Person under
26
such Indenture), punctually to make any such payment of principal (or premium,
if any) or interest, if any, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether on the Stated Maturity Date or by declaration of acceleration, call for
redemption or otherwise, and as if such payment were made by the Company.
The Guarantor will pay to the Holders such Additional Amounts as may
become payable in respect of the Guarantees under Section 1005 of the Indenture.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely guarantor, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or such Indenture, any failure
to enforce the provisions of such Security or such Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a guarantor; PROVIDED,
HOWEVER, that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the principal
amount of such Security, or increase the interest rate thereon, or increase any
premium payable upon redemption thereof, or alter the Stated Maturity Date
thereof, or increase the principal amount of any Original Issue Discount
Security that would be due and payable upon a declaration of acceleration or the
maturity thereof pursuant to Article Five of such Indenture. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of merger or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by payment in full
of the principal of (and premium, if any) and interest, if any, on such
Security.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce or to
receive any payments arising out of or based upon such right of subrogation
until the principal of (premium, if any) and interest on all Securities of the
same series issued under such Indenture shall have been paid in full.
This Guarantee shall be an unsecured, unsubordinated obligation of the
Guarantor, ranking PARI PASSU with all other existing and future unsecured,
unsubordinated indebtedness of the Guarantor, if any.
No reference herein to such Indenture and no provision of this
Guarantee or of such Indenture shall alter or impair the guarantees of the
Guarantor, which are absolute and unconditional, of the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on the Security
upon which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication of such Security shall have been manually
executed by or on behalf of the Trustee under such Indenture.
27
All terms used in this Guarantee which are defined in such Indenture
shall have the meanings assigned to them in such Indenture.
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
Executed and dated the date on the face hereof.
ENCANA CORPORATION
By: ____________________________
Name:
Title:
By: ____________________________
Name:
Title:
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an Officer's Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series and the Guarantees endorsed thereon, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (17) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series and set
forth in such Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
28
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the Securities of the series may
be issued and on which the principal of the Securities of the series is
payable;
(4) the rate or rates (whether fixed or variable) at which the
Securities of the series shall bear interest, if any, or the method by
which such rate or rates shall be determined, the date or dates from which
such interest shall accrue, or the method by which such date or dates
shall be determined, the Interest Payment Dates on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or the
method by which such date or dates shall be determined, whether and under
what circumstances Additional Amounts on such Securities or any of them
shall be payable, the notice, if any, to Holders regarding the
determination of interest on a floating rate Security and the manner of
giving such notice, and the basis upon which interest shall be calculated
if other than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York, New York where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall
be payable, where any Registered Securities of the series may be
surrendered for registration of transfer, where Securities of the series
may be surrendered for exchange, where Securities of the series that are
convertible or exchangeable may be surrendered for conversion or exchange,
as applicable and, if different than the location specified in Section
105, the place or places where notices or demands to or upon the Company
in respect of the Securities of the series, the related Guarantees and
this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which, the price or prices at which, the Currency in
which, and other terms and conditions upon which Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of
29
the Maturity thereof pursuant to Section 502 or the method by which such
portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities
of the series shall be payable or in which the Securities of the series
shall be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in which
such Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and the related Guarantees and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to Section 1009) of the Company or the
Guarantor with respect to Securities of the series (and the Guarantees
endorsed thereon), whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such series
and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other
30
than in the manner provided in Section 305, whether Registered Securities
of the series may be exchanged for Bearer Securities of the series (if
permitted by applicable laws and regulations), whether Bearer Securities
of the series may be exchanged for Registered Securities of such series,
and the circumstances under which and the place or places where any such
exchanges may be made and if Securities of the series are to be issuable
in global form, the identity of any initial Depositary therefor;
(19) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(20) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(21) if Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and/or terms of
such certificates, documents or conditions;
(22) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(23) whether, under what circumstances and the Currency in which
the Company will pay Additional Amounts as contemplated by Section 1005 on
the Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(24) if the Securities of the series are to be convertible into or
exchangeable for any debt securities of any Person (including the Company
or the Guarantor), the terms and conditions upon which such Securities
will be so convertible or exchangeable;
(25) if payment of the Securities will be guaranteed by any other
Person in addition to the Guarantor;
(26) the extent and manner, if any, to which payment on or in
respect of the Securities of the series and the related Guarantees will be
senior or will be subordinated to the prior payment of other liabilities
and obligations of the Company and the Guarantor;
31
(27) if other than The Depository Trust Company, the Person
designated as the Depositary for the Securities of such series;
(28) the percentage or percentages of principal amount at which the
Securities of the series will be issued; and
(29) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to a Board Resolution (subject to Section 303) and set
forth in such Officer's Certificate or in any such indenture supplemental
hereto. The Company may, from time to time, without notice or consent of the
Holders, create and issue additional Securities of a series so that such
additional Securities may be consolidated and form a single series with the
Securities of the same series initially issued by the Company and shall have the
same terms as to status, redemption and otherwise as the Securities of the same
series originally issued.
If any of the terms of the series are established by action taken
pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to Securities
of any series denominated in Dollars, in the absence of any such provisions, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than the Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman, its President, its Chief Executive
Officer, its Chief Financial Officer or a Vice-President, together with any one
of the Corporate Secretary, or Assistant Corporate Secretary, the Treasurer or
an Assistant Treasurer. The signature of any of these officers on the Securities
or coupons may be the manual or facsimile signatures of the present or any
future such authorized officer and may be imprinted or otherwise reproduced on
the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the
32
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series together with
any coupon appertaining thereto, executed by the Company and endorsed by the
Guarantor to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities; PROVIDED, HOWEVER, that, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in the
United States; and PROVIDED FURTHER, that, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, a Bearer Security
may be delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate in
the form set forth in Exhibit A-1 to this Indenture, dated no earlier than 15
days prior to the earlier of the date on which such Bearer Security is delivered
and the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If not all the Securities of any series are to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, one or more Opinions
of Counsel stating:
(a) that the form or forms of such Securities and any coupons and
the related Guarantees have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and any coupons and the
related Guarantees have been established in conformity with the provisions
of this Indenture;
(c) that such Securities, together with any coupons appertaining
thereto, and the Guarantees, when completed by appropriate insertions and
executed and delivered by the Company and the Guarantor to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by
the Company and the Guarantor in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute the legal, valid and
binding obligations of the Company and the Guarantor, respectively,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization
33
and other similar laws of general applicability relating to or affecting
the enforcement of creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and any
coupons;
(d) that all conditions precedent, if any, provided for in this
Indenture (including any covenant compliance with which constitutes a
condition precedent) relating to the execution and delivery by the Company
of such Securities, any coupons and any supplemental indentures, and by
the Guarantor of such Guarantees and any supplemental indentures, have
been complied with and that authentication and delivery of such
Securities, Guarantees and any coupons and the execution and delivery of
the supplemental indenture, if any, by the Trustee will not violate the
terms of the Indenture;
(e) that each of the Company and the Guarantor has the corporate
power to issue such Securities and any coupons and any Guarantees,
respectively, and has duly taken all necessary corporate action with
respect to such issuance; and
(f) that the issuance of such Securities and any coupons and any
Guarantees will not contravene the articles of incorporation or
amalgamation or by-laws of the Company or the Guarantor or result in any
violation of any of the terms or provisions of any law or regulation or of
any indenture, mortgage or other agreement known to such Counsel by which
the Company or the Guarantor is bound.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officer's Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon or Guarantee endorsed thereon shall be entitled
to any benefit 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 duly executed by the Trustee by
manual signature of an authorized officer, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled, together
with the Guarantee endorsed thereon, to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 310 together with a written statement (which need not comply with
Section 102 and need
34
not be accompanied by an Opinion of Counsel) stating that such Security has
never been issued and sold by the Company, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never entitle a Holder to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and having endorsed thereon a Guarantee
executed by the Guarantor, and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company or the
Guarantor, executing such Securities and Guarantees, may determine, as
conclusively evidenced by their execution of such Securities and Guarantees, as
the case may be. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any unmatured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations and having endorsed thereon a Guarantee executed by the
Guarantor; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED FURTHER,
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London, England office of a depositary or common depositary
(the "COMMON Depositary") or the Depositary, as applicable, for the benefit of
Euroclear and Clearstream, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company and having
endorsed thereon a Guarantee executed by the Guarantor. On or after the Exchange
Date
35
such temporary global Security shall be surrendered by the Common Depositary to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
temporary global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such temporary global Security to be exchanged. The definitive
Securities to be delivered in exchange for any such temporary global Security
shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; PROVIDED, HOWEVER, that, unless
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to
Section 301); and PROVIDED FURTHER, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or Clearstream. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to
36
Euroclear or Clearstream, as the case may be, a certificate dated no earlier
than 15 days prior to the Interest Payment Date occurring prior to such Exchange
Date in the form set forth in Exhibit A-1 to this Indenture (or in such other
form as may be established pursuant to Section 301). Notwithstanding anything to
the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section and of the third paragraph of Section 303 of this
Indenture and the interests of the Persons who are the beneficial owners of the
temporary global Security with respect to which such certification was made will
be exchanged for definitive Securities of the same series and of like principal
amount and tenor and evidencing the same indebtedness on the Exchange Date or
the date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal (or premium, if any) or interest, if
any, owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any interest
so received by Euroclear and Clearstream and not paid as herein provided shall
be returned to the Trustee immediately prior to the expiration of two years
after such Interest Payment Date in order to be repaid to the Company or the
Guarantor, as the case may be, in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Securities (the registers maintained in
the Corporate Trust Office of the Trustee and in any other office or agency of
the Company in a Place of Payment being herein sometimes collectively referred
to as the "SECURITY REGISTER") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times, the
Security Register shall be open to inspection by the Trustee. The Trustee is
hereby initially appointed as security registrar (the "SECURITY REGISTRAR") for
the purpose of registering Registered Securities and transfers of Registered
Securities as herein provided. The Company shall have the right to remove and
replace from time to time the Security Registrar for any series of Securities;
PROVIDED, THAT, no such removal or replacement shall be effective until a
successor Security Registrar with respect to such series of Registered
Securities shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or shall
cease to be the Security Registrar with respect to a series of Securities, it
shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for such series of
Securities.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee, one or more new Registered Securities of the
same series, of any authorized denominations and of a like principal amount and
tenor and having endorsed thereon a Guarantee executed by the Guarantor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like
37
principal amount and tenor and evidencing the same indebtedness, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities, having endorsed thereon a Guarantee executed by the Guarantor, which
the Holder making the exchange is entitled to receive. Unless otherwise
specified with respect to any series of Securities as contemplated by Section
301, Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) expressly permitted in or pursuant to the applicable
Board Resolution and (subject to Section 303) set forth in the applicable
Officer's Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities of
any series may be exchanged for Registered Securities of the same series of any
authorized denomination and of a like principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, any such permitted exchange
may be effected if the Bearer Securities are accompanied by payment in funds
acceptable to the Company in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive, having endorsed
thereon a Guarantee executed by the Guarantor.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like principal amount and tenor and
38
evidencing the same indebtedness of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Security,
executed by the Company and having a Guarantee executed by the Guarantor
endorsed thereon. On or after the earliest date on which such interests may be
so exchanged, such permanent global Security shall be surrendered by the Common
Depositary or such other Depositary as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
PROVIDED FURTHER, that no Bearer Security delivered in exchange for a portion of
a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary for Securities of a series notifies the
Company that it is unwilling, unable or no longer qualifies to continue as
Depositary for Securities of such series or if at any time the Depositary for
Securities for such series shall no longer be registered or in good standing
under the Exchange Act, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to the Securities for such
series. If (i) a successor to the Depositary for Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such condition, as the case may be, or (ii) an Event of Default has
occurred and is continuing with respect to the Securities, and, in either case,
the Trustee, as Security Registrar, has received a written request from the
Depositary or a participant in the Depositary in accordance with the
Depositary's customary procedures to issue Securities in definitive form to such
participant or other beneficial owner specified by such participant to the
Trustee in writing, the Company's election pursuant to Section 301 shall no
longer be effective with respect to the Securities for such series and the
Company will execute,
39
and the Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
individual Securities of such series in certificated, fully registered form, in
authorized denominations, in an aggregate principal amount equal to the
principal amount of the global Security or Securities representing such series
and having a Guarantee executed by the Guarantor endorsed thereon in exchange
for such global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company will execute, and the Trustee, upon receipt of a Company Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive registered
form, in authorized denominations, in an aggregate principal amount equal to the
principal amount of the global Security or Securities representing such series
and having a Guarantee executed by the Guarantor endorsed thereon in exchange
for such global Security or Securities.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
Depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
All Securities and Guarantees issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company and the
Guarantor, respectively, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities and Guarantees surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the selection for redemption of Securities
of that series under Section 1103 or 1203 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if Securities of the series are also
issuable as Registered
40
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor; PROVIDED that
such Registered Security shall be immediately surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like principal amount and tenor and having endorsed
thereon a Guarantee executed by the Guarantor and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the Company
in its discretion may, instead of issuing a new Security, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security,
pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a protected purchaser (as defined in Article 8 of the UCC), the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security for which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like principal amount and tenor and evidencing the same
indebtedness and having endorsed thereon a Guarantee executed by the Guarantor
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such mutilated, destroyed, lost or stolen Security or to the
Security to which such mutilated, destroyed, lost or stolen coupon appertains,
pay such Security or coupon; PROVIDED, HOWEVER, that payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
41
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, and the
Guarantee endorsed thereon issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security or in exchange for a Security to
which a mutilated, destroyed, lost or stolen coupon appertains, shall constitute
an original additional contractual obligation of the Company and the Guarantor,
respectively, whether or not the mutilated, destroyed, lost or stolen Security
and its coupons, if any, or the mutilated, destroyed, lost or stolen coupon
shall be at any time enforceable by anyone, and the Holders of such Security
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons.
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS
PRESERVED; OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on
any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002; PROVIDED, HOWEVER, that each installment of the principal of
(and premium, if any, on) and interest, if any, on any Registered Security
may, at the option of the Company or the Guarantor, as the case may be, be
paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309, to
the address of such Person as it appears on the Security Register or (ii)
wire transfer to an account of the person entitled to receive such payment
located in the United States maintained by the payee of a Holder of
$5,000,000 or more in aggregate principle amount of the Securities of such
series (with wire transfer instructions provided to the Trustee not less
than 15 days prior to payment of interest by wire transfer); PROVIDED
FURTHER, that principal paid in relation to any Security redeemed at the
option of the Company pursuant to Article Eleven, or paid at Maturity,
shall be paid to the Holder of such Security only upon presentation and
surrender of such Security to such office or agency referred to in this
Section 307(a).
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest, if any, may be made, in
the case of a Bearer Security, by transfer to an account located outside the
United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global
42
Security held for its account by the Common Depositary, for the purpose of
permitting each of Euroclear and Clearstream to credit the interest, if any,
received by it in respect of such permanent global Security to the accounts of
the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
shall forthwith cease to be payable to the Holder on the relevant Regular Record
Date, and such defaulted interest and, if applicable, interest on such defaulted
interest (to the extent lawful) at the rate specified in the Securities of such
series (such defaulted interest and, if applicable, interest thereon herein
collectively called "DEFAULTED INTEREST") may be paid by the Company or the
Guarantor, as the case may be, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Company or the Guarantor, as the case may be, may elect to
make payment of any Defaulted Interest to the Persons in whose names the
Registered 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 Company or the Guarantor, as the case may be,
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and the
date of the proposed payment, and at the same time the Company or the
Guarantor, as the case may be, shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company or the
Guarantor, as the case may be, of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be given in the manner provided in Section 106, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in whose name
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company or the Guarantor, as the case may be, may make
payment of any Defaulted Interest on the Registered Securities of any
series in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Company or the Guarantor, as the case may be, to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
43
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) on any Security of
such series may be reset by the Company on the date or dates specified on
the face of such Security (each an "OPTIONAL RESET DATE"). The Company may
exercise such option with respect to such Security by notifying the
Trustee of such exercise at least 50 but not more than 60 days prior to an
Optional Reset Date for such Note. Not later than 40 days prior to each
Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (the
"RESET NOTICE") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or
such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional
Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each
such period a "SUBSEQUENT INTEREST PERIOD"), including the date or dates
on which or the period or periods during which and the price or prices at
which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment
by the Company of the principal of such Security on each Optional Reset Date at
a price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
44
SECTION 308. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 308 may be made applicable to any series
of Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "EXTENSION PERIOD") up to but not beyond the date (the "FINAL MATURITY") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 50
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "ORIGINAL STATED MATURITY"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "EXTENSION NOTICE")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security and for all other
purposes whatsoever (except for determining whether the payment of Additional
Amounts is required), whether or not such Security be overdue, and none of the
Company, the Guarantor, the
45
Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Security or
coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Security or coupons be
overdue, and none of the Company, the Guarantor, the Trustee or any agent of the
Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
The Depositary for Securities may be treated by the Company, the
Guarantor, the Trustee, and any agent of the Company, the Guarantor or the
Trustee as the owner of such global Security for all purposes whatsoever (except
for determining whether the payment of Additional Amounts is required). None of
the Company, the Guarantor, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding anything to the contrary in this Indenture, the
Depositary or its nominee, as a Holder of a global Security, 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 a
Holder of a global Security, is entitled to take under this Indenture or the
Securities, PROVIDED FURTHER that, with respect to any global Security, nothing
herein shall prevent the Company, the Guarantor, the Trustee, or any agent of
the Company, the Guarantor or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any Depositary, as a
Holder, with respect to such global Security or impair, as between such
Depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
Depositary (or its nominee) as Holder of such global Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any current or future sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities and coupons so delivered to the Trustee shall be promptly
cancelled by it. The Company or the Guarantor may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company or the Guarantor may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted
46
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with its customary procedures and
certification of their disposal delivered to the Company and the Guarantor
unless by Company Order the Company shall direct that cancelled Securities be
returned to it.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 with
respect to any Securities, interest, if any, on the Securities shall be computed
on the basis of a 360 day year of twelve 30 day months. Solely for the purposes
of the INTEREST ACT (Canada), the yearly rate of interest to which interest
calculated under a Security for a period of less than one year on the basis of a
year of 360 days consisting of twelve 30 day periods (the "CALCULATION PERIOD")
is equivalent is such rate of interest multiplied by a fraction of which (i) the
numerator is the product of (A) the actual number of days in the year commencing
on the first day of such period, multiplied by (B) the sum of (y) the product of
30 multiplied by the number of complete months elapsed in such period and (z)
the actual number of days elapsed in any incomplete month in such period; and
(ii) the denominator is the product of (A) 360 multiplied by (B) the actual
number of days in such period.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below,
and with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such series will
be made in the Currency in which such Registered Security or Bearer
Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant
to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal
of (or premium, if any) or interest, if any, on such Registered Securities
in any of the Currencies which may be designated for such election by
delivering to the Trustee a written election with signature guarantees and
in the applicable form established pursuant to Section 301, not later than
the close of business on the Election Date immediately preceding the
applicable payment date. If a Holder so elects to receive such payments in
any such Currency, such election will remain in effect for such Holder or
any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee (but any such change must be
made not later than the close of business on the Election Date immediately
preceding the next payment date to be effective for the payment to be made
on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series
with respect to which an Event of Default has occurred or with respect to
which the Company or the Guarantor has deposited funds pursuant to Article
Four or Fourteen or with respect to which a notice of redemption has been
given by the Company or a notice of option to elect repayment has been
sent by such Holder or such transferee). Any Holder of any such Registered
Security who shall not have
47
delivered any such election to the Trustee not later than the close of
business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee shall notify the Exchange Rate Agent as soon
as practicable after the Election Date of the aggregate principal amount
of Registered Securities for which Holders have made such written
election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant
to Section 301, then, unless otherwise specified pursuant to Section 301,
not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate
Agent will deliver to the Company a written notice specifying, in the
Currency in which Registered Securities of such series are payable, the
respective aggregate amounts of principal of (and premium, if any) and
interest, if any, on the Registered Securities to be paid on such payment
date, specifying the amounts in such Currency so payable in respect of the
Registered Securities as to which the Holders of Registered Securities of
such series shall have elected to be paid in another Currency as provided
in paragraph (b) above. If the election referred to in paragraph (b) above
has been provided for pursuant to Section 301 and if at least one Holder
has made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officer's Certificate in respect of the Dollar
or Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange
Rate in effect on the third Business Day (the "VALUATION DATE")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other
than pursuant to an election provided for pursuant to paragraph (b) above,
then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any, on the applicable Securities
denominated or payable in such Foreign Currency occurring after the last
date on which such Foreign Currency was used (the "CONVERSION DATE"), the
Dollar shall be the Currency of payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar amount to
be paid by the Company to the Trustee and by the Trustee or any Paying
Agent to the Holders of such Securities with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency as determined by
the Exchange Rate Agent in the manner provided in paragraph (f) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have
been made in
48
the absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the
absence of such election, such Holder shall receive payment in Dollars as
provided in paragraph (d) above.
(f) The "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) For purposes of this Section 312, "ELECTION DATE" shall mean
the date for any series of Registered Securities as specified pursuant to
clause (13) of Section 301 by which the written election referred to in
paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency and the Market Exchange Rate as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Guarantor, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company, the Guarantor and the Trustee of
any such decision or determination.
In the event that the Company or the Guarantor determines in good faith
that a Conversion Event has occurred with respect to a Foreign Currency, the
Company or the Guarantor, as the case may be, will immediately give written
notice thereof to the Trustee and to the Exchange Rate Agent (and the Trustee
will promptly thereafter give notice in the manner provided for in Section 106
to the affected Holders) specifying the Conversion Date.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company, the Guarantor and the
Exchange Rate Agent and shall not otherwise have any duty or obligation to
determine the accuracy or validity of such information independent of the
Company, the Guarantor or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations
at the time and in the manner specified pursuant to Section 301 for the
purpose of determining the applicable rate of exchange and, if applicable,
for the purpose of converting the issued Currency into the applicable
payment Currency for the payment of principal (and premium, if any) and
interest, if any, pursuant to Section 312.
(b) The Company shall have the right to remove and replace from
time to time the Exchange Rate Agent for any series of Securities. No
resignation of the Exchange Rate Agent and no appointment of a successor
Exchange Rate Agent pursuant to this Section shall become effective until
the acceptance of appointment by the successor
49
Exchange Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents
with respect to the Securities of that or those series (it being
understood that any such successor Exchange Rate Agent may be appointed
with respect to the Securities of one or more or all of such series and
that, unless otherwise specified pursuant to Section 301, at any time
there shall only be one Exchange Rate Agent with respect to the Securities
of any particular series that are originally issued by the Company on the
same date and that are initially denominated and/or payable in the same
Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto and any right to receive Additional Amounts as contemplated by Section
1005) and the Trustee, at the expense of the Company or the Guarantor, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇) Securities and coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) coupons appertaining to
Securities called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided in Section
1106, and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust with the Trustee or any
Paying Agent or segregated and held in trust by the Company or the
Guarantor, as the case may be, and thereafter repaid to the Company or
the Guarantor, as the case may be, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) (1) all Securities of such series and, in the case of
(i) or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
50
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and, in the case of (i), (ii) or (iii) above, the Company or the
Guarantor has irrevocably deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest, if any, to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company or the Guarantor, as the
case may be, in respect of such series; and
(3) the Company or the Guarantor has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 612
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company or the Guarantor acting as Paying Agent) as
the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest, if any, for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
51
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a
supplemental indenture, Board Resolution or Officer's Certificate establishing
the terms of such series pursuant to Section 301 of this Indenture:
(1) default in the payment of any interest on any Security of that
series, or any related coupon, when such interest or coupon becomes due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture in respect of the
Securities of that series or the related Guarantee (other than a covenant or
warranty a default in the performance of which, or the breach of which, is
specifically dealt with elsewhere in this Indenture), and continuance of such
default or breach for a period of 60 days after the receipt by the Company and
the Guarantor of written notice specifying such default or breach, and requiring
it to be remedied and stating that such notice is a "NOTICE OF DEFAULT"
hereunder (i) to the Company and the Guarantor (attention of the General Counsel
to each of the Guarantor and the Company via facsimile, with a hard copy then
sent, by registered or certified mail) by the Trustee or (ii) to the Company and
the Guarantor (in the same manner) and the Trustee by the Holders of at least
25% in principal amount of all Outstanding Securities of any series affected
thereby; or
(4) if an event of default (as defined in any indenture or
instrument under which the Company, or the Guarantor or any of its Restricted
Subsidiaries has at the time of this Indenture or shall thereafter have
outstanding any indebtedness for borrowed money) shall happen and be continuing,
the Company, or the Guarantor or any of its Restricted Subsidiaries shall have
failed to pay principal amounts with respect to such indebtedness at maturity
and such event of default or failure to pay shall result in such indebtedness
being declared due and payable or otherwise being accelerated, in either event
so that an amount in excess of the greater of $75,000,000 and 2% of the
Shareholders' Equity of the Guarantor shall be or become due and payable upon
such declaration or otherwise accelerated prior to the date on which the same
would otherwise have become due and payable (the "ACCELERATED INDEBTEDNESS"),
and such acceleration shall not be rescinded or annulled, or such event of
default or failure to pay under such indenture or instrument shall not be
remedied or cured, whether by payment or otherwise, or waived by the holders of
such Accelerated Indebtedness, then (a) if the Accelerated Indebtedness shall be
as a result of an event of default which is not related to the failure to pay
principal or interest on the terms, at the times and on the conditions set out
in any such indenture
52
or instrument, it shall not be considered an Event of Default for purposes of
this Indenture until 30 days after such indebtedness has been accelerated, or
(b) if the Accelerated Indebtedness shall occur as a result of such failure to
pay principal or interest or as a result of an event of default which is related
to the failure to pay principal or interest on the terms, at the times, and on
the conditions set out in any such indenture or instrument, then (i) if such
Accelerated Indebtedness is, by its terms, Non-Recourse Debt to the Company, the
Guarantor or its Restricted Subsidiaries, it shall not be considered an Event of
Default for purposes of this Indenture; or (ii) if such Accelerated Indebtedness
is recourse to the Company, the Guarantor or its Restricted Subsidiaries, any
requirement in connection with such failure to pay or event of default for the
giving of notice or the lapse of time or the happening of any further condition,
event or act under such other indenture or instrument in connection with such
failure to pay principal or an event of default shall be applicable together
with an additional seven days before being considered an Event of Default for
purposes of this Indenture; or
(5) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company or the Guarantor a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under
the BANKRUPTCY AND INSOLVENCY ACT (Canada), the COMPANIES' CREDITORS ARRANGEMENT
ACT (Canada) or any other applicable insolvency law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or the Guarantor or of any substantial part of the property of the
Company or the Guarantor, or ordering the winding up or liquidation of the
affairs of the Company or the Guarantor, and the continuance of any such decree
or order unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company or the Guarantor of proceedings
to be adjudicated a bankrupt or insolvent, or the consent by either the Company
or the Guarantor to the institution of bankruptcy or insolvency proceedings
against it, or the filing by the Company or the Guarantor of a petition or
answer or consent seeking reorganization or relief under the BANKRUPTCY AND
INSOLVENCY ACT (Canada), the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or
any other applicable insolvency law, or the consent by the Company or the
Guarantor to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or the Guarantor or of any substantial part of the
property of either the Company or the Guarantor, respectively, or the making by
either the Company or the Guarantor of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due; or
(7) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 501 with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of such affected series may,
subject to any subordination provisions thereof, declare the principal amount
(or, if the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the
53
Securities of that series, and all accrued and unpaid interest thereon to the
date of such acceleration, to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Holders), and upon any such declaration such principal amount (or specified
portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company, the Guarantor
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue interest, if any, on all Outstanding
Securities of that series (or of all series, as the case may be) and
any related coupons,
(B) all unpaid principal of (and premium, if any) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest, if any, at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the non-payment
of amounts of principal of (or premium, if any, on) or interest on
Securities of that series (or of all series, as the case may be) which
have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(4) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Guarantor and countersigned
by the holders of such indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such
54
declaration of acceleration in respect of the Securities, and no other Event of
Default has occurred during such 30-day period which has not been cured or
waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.
Each of the Company and the Guarantor covenants that if:
(1) default is made in the payment of any installment of interest
on any Security and any related coupon when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company or the Guarantor will, upon demand of the Trustee, pay
to the Trustee for the benefit of the Holders of such Securities and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, and interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amounts as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company or the Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, the Guarantor or any other obligor upon
such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company, the Guarantor or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, the Guarantor or any other obligor
upon the Securities or the property of the Company, the Guarantor or the
property of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made
55
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount of any
series of Original Issue Discount Securities or Indexed Securities as may
be specified in the terms of such series, and interest, if any, owing and
unpaid in respect of the Securities or the Guarantees and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the Securities
or coupons or the Guarantees may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
56
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest, if any, on the Securities and coupons in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, respectively; and
THIRD: The balance, if any, to the Company or the Guarantor, as
applicable, or to such Person or Persons as the Company or the Guarantor, as the
case may be, instructs in writing.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, the Securities of any series or the Guarantees, 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 not less than 25% in aggregate principal amount
of the Outstanding Securities of that series in the case of any Event of
Default described in Section 501, shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities of that
series in the case of any Event of Default described in Section 501;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities of the same series, in the case of any Event of
Default described in Section 501, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL
(PREMIUM, IF ANY) AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein
57
(including, if applicable, Article Fourteen) and in such Security (and the
Guarantees endorsed thereon), of the principal of (and premium, if any) and
(subject to Section 307) interest, if any, on, such Security or payment of such
coupon on the respective Stated Maturities expressed in such Security or coupon
(or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of the Holder as contemplated by Article Thirteen
hereof, on the Repayment Date) and to institute suit for the enforcement of any
such payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Guarantor, the Trustee and
the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or
coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Article Six, with respect to the Securities of any series,
the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, relating to or arising
under Section 501, PROVIDED that in each case
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
58
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in Section 501, and its consequences, except a default
(1) in respect of the payment of the principal of (or premium, if
any) or interest, if any, on any Security or any related coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
Each of the Company and the Guarantor covenants (to the extent that it
may lawfully do so) that it will not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder, by acceptance of
a Security, shall be deemed to have agreed that, in any suit for the enforcement
of any right or remedy under this Indenture, or any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, any court may, in its
discretion, require the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; PROVIDED,
HOWEVER, that the provisions of this Section 515 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate Securities representing more than 10% of the
aggregate principal amount of the
59
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of any installment of interest on any
Security (or under any Guarantee) on or after the Stated Maturity thereof
expressed in such Security or for the enforcement of the payment of the
principal of such Security (or under any Guarantee) at the Stated Maturity
therefore.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder with
respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons, and so advises the
Company and the Guarantor in writing; and PROVIDED FURTHER, that in the case of
any Default of the character specified in Section 501(3) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
SECTION 602. CERTAIN DUTIES AND RESPONSIBILITIES OF TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of Default
and after the curing of all Events of Default that may have occurred,
shall undertake to perform with respect to the Securities of any series,
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture
against the Trustee. If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(1) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no
60
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture and the Trust Indenture Act;
but in the case of any such certificates or opinions that by any
provision hereof or Section 314 of the TIA are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by them in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount
of the Securities of any series at the time Outstanding relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee under this Indenture; and
(4) notwithstanding anything contained herein to the contrary,
subject to the provisions of TIA Sections 315(a) through 315(d), the
Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Whether or not therein expressly so provided, except to the
extent expressly provided herein to the contrary, every provision of this
Indenture relating to the conduct or effecting the liability or affording
protection to the Trustee, shall be subject to the provisions of this
Section.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company or the Guarantor
mentioned herein shall be sufficiently evidenced by a Company Request or
Company Order and any
61
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officer's Certificate;
(4) before the Trustee acts or refrains from acting, 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;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(9) except as otherwise specifically provided herein, (i) all
references in this Indenture to the Trustee shall be deemed to refer to
the Trustee in its capacity as Trustee and in its capacities as Security
Registrar, Authenticating Agent and Paying Agent and (ii) every provision
of this Indenture relating to the conduct or affecting the liability or
offering protection, immunity or indemnity to the Trustee shall be deemed
to apply with the same force and effect to the Trustee acting in its
capacities as Paying Agent, Authenticating Agent and Security Registrar;
(10) the Trustee shall not be charged with knowledge of any Default
or Event of Default with respect to Securities of any series, unless
either (1) a Responsible Officer shall have actual knowledge of such
Default or Event of Default or (2) written notice of
62
such Default or Event of Default shall have been given to the Trustee by
the Company, the Guarantor or by any Holder of such Securities; and
(11) the permissive rights of the Trustee enumerated herein shall
not be construed as duties.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, and in any coupons shall be taken as
the statements of the Company and the Guarantor, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company and
the Guarantor are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, the Guarantor or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company and the Guarantor with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent. A Trustee that has resigned or was removed shall
remain subject to TIA Section 311(a) to the extent required by such TIA Section
311(a).
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as
the Trustee and the Company shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel),
63
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense (including, without limitation, the
reasonable compensation and the expenses and disbursements of its agents
and counsel) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, the performance of its
duties hereunder and/or the exercise of its rights hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
In case of the failure of the Company punctually to make any such
payment to the Trustee of compensation or reimbursement, the Guarantor hereby
agrees to make any such payment or cause any such payment to be made punctually
when and as the same shall become due and payable, as if such payment were made
by the Company.
The obligations of the Company and the Guarantor under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of each of the Company and the Guarantor, the Trustee shall have a
claim prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of
(or premium, if any) or interest, if any, on particular Securities or any
coupons.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(5), the expenses (including
reasonable charges and expense of its counsel) of and the compensation for such
services are intended to constitute expenses of administration under any
applicable U.S. or Canadian federal, state or provincial bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination of this
Indenture, the payment of the Securities and the resignation or removal of the
Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus (together with that of its parent) of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
64
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company and the Guarantor. If the instrument of acceptance by a successor
Trustee required by Section 610 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority
in principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall acquire any conflicting interest as
defined in TIA Section 310(b) and fail to comply with the provisions of
TIA Section 310(b)(i), or
(2) the Trustee shall fail to comply with the provisions
of the TIA Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at
least six months, or
(3) the Trustee shall cease to be eligible under Section
608 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security
for at least six months, or
(4) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of such Trustee or of
its property shall be appointed or any public officer shall take charge
or control of such Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with
respect to all Securities or the Securities of such series, or (ii) subject to
TIA Section 315(e), any Holder who has been a bona fide Holder of a Security 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 of such series and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after
65
such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Company, the
Guarantor and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to
that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series to the Holders of Securities of such series in the manner
provided for in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed
shall execute, acknowledge and deliver to the Company, to the Guarantor
and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company, the
Guarantor or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the Guarantor, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder
66
by more than one Trustee, it being understood that nothing herein or in
such supplemental indenture shall constitute such Trustees co-trustees of
the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request
of the Company, the Guarantor or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. Whenever there is a successor Trustee
with respect to one or more (but less than all) series of securities
issued pursuant to this Indenture, the terms "Indenture" and "Securities"
shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such
situation.
(c) Upon request of any such successor Trustee, the Company and
the Guarantor shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all rights,
powers and trusts referred to in paragraph (i) or (ii) of this Section, as
the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation 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 or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities. In case
any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
67
SECTION 612. AUTHORIZATION OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may authorize an Authenticating Agent or Agents with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities of such series and the Trustee shall give written
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, in the manner provided
for in Section 106. Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such authorization shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, and a copy of such instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by federal or state authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it 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 Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may authorize a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such authorization to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
authorization hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be authorized
unless eligible under the provisions of this Section.
68
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an authorization with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated: ____________________
This is one of the Securities of the series designated and referred to
in, and issued under, the within-mentioned Indenture.
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By _________________________________
as Authenticating Agent
SECTION 613. CONFLICTING INTERESTS.
To the extent permitted by the Trust Indenture Act, the Trustee shall
not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Trustee (1)
not more than 15 days after each Regular Record Date a list, in such form as the
Trustee may reasonably require, of the names and addresses of Holders of
Registered Securities as of such Regular Record Date; PROVIDED, HOWEVER, that
the Company shall not be obligated to furnish or cause to be furnished such list
at any time that the list shall not differ in any respect from the most recent
list furnished to the Trustee by the Company and at such times as the Trustee is
acting as Security Registrar for the applicable series of Securities and (2) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished.
SECTION 702. PRESERVATION OF LIST OF NAMES AND ADDRESSES OF
HOLDERS.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Registered Securities contained in the most recent list furnished to it as
provided in Section 701 and as to the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Security
Registrar for the applicable series of Securities (if acting in such capacity).
69
The Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
SECTION 703. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company, the Guarantor and the Trustee that none of the
Company, the Guarantor or the Trustee or any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with TIA Section 312, 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 TIA Section 312(b).
SECTION 704. REPORTS BY TRUSTEE.
(a) Within 60 days after March 15 of each year commencing with the
first March 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Registered
Securities, in the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act, a brief report dated as of such March 15 if
required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of
the Trust Indenture Act.
(c) A copy of such report shall, at the time of such transmission
to the Holders of Registered Securities, be filed by the Trustee with the
Company and the Guarantor (Attention: General Counsel), with each
securities exchange upon which any of the Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee in writing when the Securities become listed on any stock
exchange.
SECTION 705. REPORTS BY THE GUARANTOR.
The Guarantor shall:
(a) file with the Trustee, within 15 days after the Guarantor 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 the Guarantor may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Guarantor with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations;
70
(c) notwithstanding that the Guarantor may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, 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, the Guarantor shall provide
the Trustee:
(1) within 140 days after the end of each fiscal year, the
information required to be contained in annual reports on Form 20-F, Form
40-F or Form 10-K as applicable (or any successor form); and
(2) within 65 days after the end of each of the first three fiscal
quarters of each fiscal year, the information required to be contained in
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 the Guarantor has any
of its securities so listed;
and 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 Guarantor shall not be
obligated to file such reports with the Commission if the Commission does
not permit such filings; and
(d) transmit to all Holders of Registered Securities, in the
manner and to the extent provided in Section 313(c) of the TIA, within 15
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Guarantor
pursuant to paragraphs (a) and (b) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such reports shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's or the
Guarantor's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer's Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY AND GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
Neither the Company nor the Guarantor shall consolidate or amalgamate
with or merge into or enter into any statutory arrangement with any other
corporation, or convey, transfer or lease all or substantially all of its
properties and assets to any Person, unless:
(1) the entity formed by or continuing from such consolidation or
amalgamation or into which the Company or the Guarantor, as the case may
be, is
71
merged or with which the Company or the Guarantor, as the case may be,
enters into such statutory arrangement or the Person which acquires or
leases all or substantially all of the properties and assets of the
Company or the Guarantor, as the case may be, (A) shall be a corporation,
partnership or trust organized and validly existing under the laws of the
United States of America, any state thereof or the District of Columbia or
the laws of Canada or any province or territory thereof, or, if such
consolidation, amalgamation, merger, statutory arrangement or other
transaction would not impair the rights of Holders, in any other country,
provided that if such successor entity is organized under the laws of a
jurisdiction other than the United States, any state thereof or the
District of Columbia, or the laws of Canada or any province or territory
thereof, the successor entity assumes the obligations of the Company or
the Guarantor, as the case may be, under the Securities and this Indenture
to pay Additional Amounts, with the name of such successor jurisdiction
being included in addition to Canada in each place that Canada appears in
Section 1005 and (B) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, or shall assume by operation of law, the obligation for the due
and punctual payment of the principal of (and premium, if any) and
interest, if any, on all the Securities and the performance and observance
of every covenant of this Indenture on the part of the Company to be
performed or observed or the Guarantor's obligations under the Guarantee
and this Indenture, as the case may be;
(2) immediately before and after giving effect to such
transaction, no Default or Event of Default, shall have happened and be
continuing; and
(3) the Company or the Guarantor, as the case may be, or such
Person shall have delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel, each stating that such amalgamation, statutory
arrangement, consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
This Section shall only apply to a merger, amalgamation, statutory
arrangement or consolidation in which the Company or the Guarantor, as the case
may be, is not the surviving corporation and to conveyances, leases and
transfers by the Company or the Guarantor, as the case may be, as transferor or
lessor. For greater certainty, the Company or the Guarantor, as the case may be,
shall be considered to be the surviving corporation in the event of a statutory
amalgamation by the Company or the Guarantor, as the case may be, with any
Subsidiary wholly-owned by it.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any amalgamation or consolidation by the Company or the Guarantor
with or merger by the Company or the Guarantor into any other corporation or any
conveyance, transfer or lease all or substantially all of the properties and
assets of the Company or the Guarantor to any Person in accordance with Section
801, the successor Person formed by such amalgamation or consolidation or into
which the Company or the Guarantor, as the case may be, is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or the Guarantor, as
the case may be, under this Indenture with the same effect as if such successor
Person had been named as the Company or the Guarantor, as the
72
case may be, herein, and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any successor Person which
shall theretofore become such in the manner described in Section 801) or the
Guarantor (which term shall for this purpose mean the Person named as the
"Guarantor" in the first paragraph of this Indenture or any successor Person
which shall therefore become such in the manner described in Section 801), as
the case may be, except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and the
coupons, and the Guarantees, as the case may be, and may be dissolved and
liquidated.
SECTION 803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any amalgamation, consolidation or statutory arrangement of
the Guarantor with or merger of the Guarantor into any other corporation, or
upon any conveyance, lease or transfer of all or substantially all of the
property of the Guarantor to any other Person, any Restricted Property of the
Guarantor or its Restricted Subsidiaries, or any Restricted Securities owned by
the Guarantor immediately prior thereto, would thereupon become subject to any
Lien, then unless such Lien could be created pursuant to Section 1006 without
equally and ratably securing the Securities, the Guarantor or such Restricted
Subsidiary, prior to or simultaneously with such consolidation, amalgamation,
statutory arrangement, merger, conveyance, lease or transfer, will, as to such
Restricted Property or Restricted Securities, secure the Securities Outstanding
hereunder (together with, if the Guarantor shall so determine, any other
indebtedness of the Guarantor now existing or hereafter created which is not
subordinate to the Securities) equally and ratably with (or prior to) the
indebtedness which upon such consolidation, amalgamation, merger, statutory
arrangement, conveyance, lease or transfer is to become secured as to such
Restricted Property or Restricted Securities by such Lien, or will cause such
Securities to be so secured; PROVIDED that, for the purpose of providing such
equal and ratable security, the principal amount of Original Issue Discount
Securities and Indexed Securities shall mean that amount which would at the time
of making such effective provision be due and payable pursuant to Section 502
and the terms of such Original Issue Discount Securities and Indexed Securities
upon a declaration of acceleration of the Maturity thereof, and the extent of
such equal and ratable security shall be adjusted, to the extent permitted by
law, as and when said amount changes over time pursuant to the terms of such
Original Issue Discount Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
73
(1) to evidence the succession of another Person to the Company or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor contained herein and in the Securities or the
Guarantees; or
(2) to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of all or any series of Securities and any
related coupons (and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any right
or power herein conferred upon the Company or the Guarantor, as the case
may be; or
(3) to add any additional Events of Default (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 803 or 1006 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 610(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall
74
not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect; or
(11) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture, or to make any
other provisions with respect to matters or questions arising hereunder or
in any supplemental indenture; PROVIDED such action shall not adversely
affect the interests of the Holders of Securities of any series and any
related coupons in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of a series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company and the Guarantor, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
which affect such series of Securities or of modifying in any manner the rights
of the Holders of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of such series,
(1) change the Stated Maturity of the principal of (or premium, if
any) or any installment of interest on any Security of such series, or
reduce the principal amount thereof (or premium, if any) or the rate of
interest, if any, thereon, or change any obligation of the Company or the
Guarantor to pay Additional Amounts contemplated by Section 1005 (except
as contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount Security
of such series that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely
affect any right of repayment at the option of any Holder of any Security
of such series, or change any Place of Payment where, or the Currency in
which, any Security of such series or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or Repayment Date, as the case may be), or adversely
affect any right to convert or exchange any Security as may be provided
pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with
certain provisions of this Indenture which affect such series or certain
defaults applicable to such series hereunder and their consequences
provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting with respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any such percentage or to provide that
certain other provisions of this
75
Indenture which affect such series cannot be modified or waived without
the consent of the Holder of each Outstanding Security of such series.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel 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 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company or the
Guarantor shall so determine, new Securities of any series and any Guarantees
endorsed thereon so modified as to conform, in the opinion of the Trustee, the
Company and the Guarantor, to any such supplemental indenture may be prepared
and executed by the Company and the Guarantor and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
76
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any supplemental indenture pursuant to the provisions of Section 902,
the Company shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL (PREMIUM, IF ANY) AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities and any related coupons that it will duly and punctually
pay the principal of (and premium, if any) and interest, if any, on the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, (i) the Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served, and
(ii) the Guarantor will maintain an office or agency in New York, New York where
notices and demands to or upon the Guarantor in respect of the Securities of
that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, (i) the
Company will maintain (A) in New York, New York an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise) (B) subject to any laws
or regulations applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment;
PROVIDED, HOWEVER, that, if the Securities of that series are listed on any
securities exchange located outside the United States and such securities
exchange shall so require, the Company will maintain a Paying Agent for the
77
Securities of that series in any required city located outside the United States
so long as the Securities of that series are listed on such exchange, and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible and exchangeable may be
surrendered for conversion or exchange, as applicable and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served, and (iii) the Guarantor will maintain an office or
agency in New York, New York where notices and demands to or upon the Guarantor
in respect of the Securities of that series and this Indenture may be served.
The Company and the Guarantor will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company or the Guarantor shall fail to maintain any
such required office or agency or shall fail to furnish in writing the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of any series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London, and
the Company and the Guarantor hereby appoints the same as its agents to receive
such respective presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company or the Guarantor in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in Dollars,
payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security shall be made at the office of the Company's Paying Agent in New
York, New York if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the Corporate Trust Office in New York, New York and initially
appoints the Trustee at its Corporate Trust Office as Paying Agent in such city
and as its agent to receive all such presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars
78
or (ii) may be payable in a Currency other than Dollars, or so long as it is
required under any other provision of the Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company or the Guarantor shall at any time act as Paying Agent
with respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, prior to or on each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent (other than the Trustee) for
any series of Securities to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of such series
in trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company
or the Guarantor (or any other obligor upon the Securities of such series)
in the making of any payment of principal of (or premium, if any) or
interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Company or the Guarantor may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such
79
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company or the
Guarantor, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series, or any coupon appertaining
thereto, and remaining unclaimed for two years (or such shorter period as may be
specified in the applicable abandoned property statutes) after such principal,
premium or interest has become due and payable shall be paid to the Company or
the Guarantor, as the case may be, on Company Request, or (if then held by the
Company or the Guarantor) shall be discharged from such trust; and the Holder of
such Security or coupon shall thereafter, as an unsecured general creditor, look
only to the Company or the Guarantor for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company (or the Guarantor) as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company or the
Guarantor cause to be published once, in an Authorized Newspaper, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company or the
Guarantor, as the case may be.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
Each of the Company and the Guarantor will deliver to the Trustee,
within 140 days after the end of each fiscal year, a brief certificate from the
Chief Executive Officer, the Chief Financial Officer or the Controller as to his
or her knowledge of the Company's or the Guarantor's compliance with all
conditions and covenants under this Indenture. For purposes of this Section
1004, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1005. ADDITIONAL AMOUNTS.
(a) Unless otherwise provided pursuant to Section 301, all
payments made by or on behalf of the Company or the Guarantor under or with
respect to the Securities of any series or any Guarantees will be made free and
clear of and without withholding or deduction for or on account of any present
or future tax, duty, levy, impost, assessment or other governmental charge
(including penalties, interest and other liabilities related thereto) imposed or
levied by or on behalf of the Government of Canada or of any province or
territory thereof or by any authority or agency therein or thereof having power
to tax (hereinafter "CANADIAN TAXES"), unless the Company or the Guarantor, as
the case may be, is required to withhold or deduct Canadian Taxes by law or by
the interpretation or administration thereof. If the Company or the Guarantor 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 or Guarantees, the
Company or the Guarantor, as the case may be, 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
80
Additional Amounts) will not be less than the amount the Holder would have
received if such Canadian Taxes had not been withheld or deducted. However, no
Additional Amounts will be payable with respect to a payment made to a Holder
(such Holder, an "EXCLUDED HOLDER") in respect of the beneficial owner thereof:
(1) with which the Company or the Guarantor, as the case may be,
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 the
Holder's failure to comply with any certification, identification,
information, documentation or other reporting requirements if compliance
is required by law, regulation, administrative practice or an applicable
treaty as a precondition to exemption from, or a reduction in the rate of
deduction or withholding of, such Canadian Taxes.
The Company or the Guarantor, as the case may be, will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
The Company or the Guarantor, as the case may be, will furnish to the
Holders of the Securities, within 60 days after the date the payment of any
Canadian Taxes is due pursuant to applicable law, certified copies of tax
receipts or other documents evidencing such payment by the Company or the
Guarantor, as the case may be.
(b) The Company and the Guarantor will indemnify and hold harmless
each Holder (other than an Excluded Holder) and, upon written request, reimburse
each such Holder for the amount excluding any Additional Amounts that have been
previously been paid by the Company or the Guarantor 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 or the Guarantees;
(2) any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto; and
(3) any Canadian Taxes imposed with respect to any reimbursement
under clause (1) or (2) in this paragraph, but excluding any such Canadian
Taxes on such Holder's net income.
81
At least five (5) days prior to each date on which any payment under or
with respect to the Securities is due and payable, if the Company or the
Guarantor will be obligated to pay Additional Amounts with respect to such
payment, the Company or the Guarantor, as the case may be, 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.
Notwithstanding the foregoing, no Additional Amounts or indemnity
amounts will be payable in excess of Additional Amounts or indemnity amounts
which would be required if the holder of debt securities was a resident of the
United States for purposes of the Canada-U.S. Income Tax Convention (1980), as
amended.
Wherever in this Indenture, the Securities or the Guarantees 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 or
Guarantee, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.
SECTION 1006. LIMITATION ON LIENS.
So long as any Securities are Outstanding and subject to the terms of
this Indenture, the Guarantor will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise have outstanding
any Lien securing any indebtedness for borrowed money or interest thereon (or
any liability of the Guarantor or such Restricted Subsidiaries under any
guarantee or endorsement or other instrument under which the Guarantor or such
Restricted Subsidiaries are contingently liable, either directly or indirectly,
for borrowed money or interest thereon), other than Permitted Liens, without
also simultaneously or prior thereto securing, or causing such Restricted
Subsidiaries to secure, indebtedness under this Indenture so that the Securities
are secured equally and ratably with or prior to such other indebtedness or
liability, except that the Guarantor and its Restricted Subsidiaries may incur a
Lien to secure indebtedness for borrowed money without securing the Securities
if, after giving effect thereto, the principal amount of indebtedness for
borrowed money secured by Liens created, incurred or assumed after the date
hereof and otherwise prohibited by this Indenture does not exceed 10% of the
Guarantor's Consolidated Net Tangible Assets.
Notwithstanding the foregoing, transactions such as the sale (including
any forward sale) or other transfer of: (i) oil, gas, minerals or other
resources of a primary nature, whether in place or when produced, for a period
of time until, or in an amount such that, the purchaser will realize therefrom a
specified amount of money or a specified rate of return (however determined), or
a specified amount of such oil, gas, minerals, or other resources of a primary
nature, or (ii) any other interest in property of the character commonly
referred to as a "PRODUCTION PAYMENT", will not constitute a Lien and will not
result in the Guarantor or a Restricted Subsidiary being required to secure the
Securities.
82
SECTION 1007. PAYMENT OF TAXES.
The Guarantor will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all material taxes, assessments and
governmental charges levied or imposed upon the Guarantor or any Restricted
Subsidiary or upon the income, profits or property of the Guarantor or any
Restricted Subsidiary; PROVIDED, HOWEVER, that the Guarantor shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment or charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1008. CORPORATE EXISTENCE.
Subject to Article Eight, each of the Company and the Guarantor will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the rights (charter and statutory) and
franchises of the Company or the Guarantor and any Restricted Subsidiary,
respectively; PROVIDED, HOWEVER, that neither the Company nor the Guarantor
shall be required to preserve any such right or franchise if the Company or the
Guarantor shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company or the Guarantor and its
Subsidiaries, respectively, as a whole.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company or the Guarantor may, with respect to any series of
Securities, omit in any particular instance to comply with any term, provision
or condition which affects such series set forth in Section 803 or Sections 1006
through 1008 inclusive, as applicable, or, as specified pursuant to Section
301(17) for Securities of such series, in any covenants of the Company or the
Guarantor added to Article Ten pursuant to Section 301(16) or Section 301(17) in
connection with Securities of such series, if before the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of any series, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the Guarantor and the duties of the Trustee to
Holders of Securities of such series in respect of any such term, provision or
condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
83
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities of such series to be redeemed and shall deliver
to the Trustee such documentation and records as shall enable the Trustee to
select the Securities to be redeemed pursuant to Section 1103. In the case of
any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company (and the Guarantor, as the case may be) shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 90 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions of the principal of Securities of such series; PROVIDED,
HOWEVER, that no such partial redemption shall reduce the portion of the
principal amount of a Security not redeemed to less than the minimum authorized
denomination for Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301, notice of
redemption shall be given in the manner provided for in Section 106 not less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed. Failure to give notice in the manner provided in
Section 106 to the Holder of any Securities designated for redemption as a whole
or in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other Securities or
portion thereof.
All notices of redemption shall state:
(1) the Redemption Date,
84
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price unless security or indemnity satisfactory to the Company,
the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on such Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
At or prior to 10:00 a.m. (New York, New York time) on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company or the Guarantor is acting as Paying Agent, segregate and hold in
trust as provided in Section 1003) an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the Redemption Price of, and accrued interest, if any, on, all the Securities
which are to be redeemed on that date.
85
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED FURTHER,
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to the
provisions of this Article or of Article Twelve) shall be surrendered at a Place
of Payment therefor (with, if the Company, the Guarantor or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Guarantor and the Trustee duly executed by,
86
the Holder thereof or such Holder's attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or Securities of
the same series, and having endorsed thereon a Guarantee executed by the
Guarantor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. TAX REDEMPTION.
Unless otherwise specified pursuant to Section 301, the Company shall
have the right to redeem, at any time, the Securities of a series, in whole but
not in part, at a redemption price equal to the principal amount thereof
together with accrued and unpaid interest to the date fixed for redemption, upon
the giving of a notice as described below, if (1) the Company or the Guarantor
(or their successors), as the case may be, 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 of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding 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 specified
pursuant to Section 301, if any date is so specified, the Company or the
Guarantor has or will become obligated to pay, on the next succeeding date on
which interest is due, Additional Amounts pursuant to Section 1005 or (b) on
86
or after a date specified pursuant to Section 301, 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 any political subdivision or taxing
authority thereof or therein, including any of those actions specified in (a)
above, whether or not such action was taken or decision was rendered with
respect to the Company or the Guarantor, or any change, amendment, application
or interpretation shall be officially proposed, which, in any such case, in the
Opinion of Counsel to the Company or the Guarantor, will result in the Company
or the Guarantor becoming obligated to pay, on the next succeeding date on which
interest is due, Additional Amounts with respect to any Security or Guarantee of
such series and (2) in any such case, the Company or the Guarantor, as the case
may be, in its business judgment determines that such obligation cannot be
avoided by the use of reasonable measures available to the Company or the
Guarantor; PROVIDED, HOWEVER, that (i) no such notice of redemption may be given
earlier than 60 or later than 30 days prior to the earliest date on which the
Company or the Guarantor would be obligated to pay such Additional Amounts were
a payment in respect of the Securities then due, and (ii) at the time such
notice of redemption is given, such obligation to pay such Additional Amounts
remains in effect.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any sinking fund
shall be made in accordance with the terms of such Securities and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
87
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY SINKING
FUND PAYMENT", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "OPTIONAL
SINKING FUND PAYMENT". If provided for by the terms of Securities of any series,
the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company 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 Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding sinking fund payment date for that series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of such
Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 1202 and without the right
to make any optional sinking fund payment, if any, with respect to such series.
88
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
On or prior to 10:00 a.m. (New York, New York time) on any sinking fund
payment date, the Company shall pay to the Trustee or a Paying Agent (or, if the
Company or the Guarantor is acting as Paying Agent, segregate and hold in trust
as provided in Section 1003) in cash a sum equal to any interest that will
accrue to the date fixed for redemption of Securities or portions thereof to be
redeemed on such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the next succeeding notice of the redemption of
Securities of such series through the operation of the sinking fund. Any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any Paying Agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date specified
in or pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company or the Guarantor is acting as Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of
89
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal (or, if so
provided by the terms of the Securities of any series, a percentage of the
principal) of and (except if the Repayment Date shall be an Interest Payment
Date) accrued interest, if any, on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the Holders
thereof will contain an "Option to Elect Repayment" form on the reverse of such
Securities. To be repaid at the option of the Holder, any Security so providing
for such repayment, with the "Option to Elect Repayment" form on the reverse of
such Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places or which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire principal amount of such Security is to
be repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the Security
or Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE
AND PAYABLE.
If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER, that, in the case of Registered
Securities, installments of interest, if any, whose Stated
90
Maturity is on or prior to the Repayment Date shall be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, and having
endorsed thereon a Guarantee executed by the Guarantor, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article Fourteen shall apply to
each series of Securities, and the Company or the Guarantor may, at its option,
effect defeasance (as defined below) of the Securities of or within a series
under Section 1402, or covenant defeasance (as defined below) of or within a
series under Section 1403 in accordance with the terms of such Securities and in
accordance with this Article.
91
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's or the Guarantor's exercise of the above option
applicable to this Section with respect to any Securities of or within a series,
the Company and the Guarantor shall be deemed to have been discharged from their
obligations with respect to such Outstanding Securities and any related coupons
on the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"DEFEASANCE"). For this purpose, such defeasance means that the Company and the
Guarantor shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities, the Guarantees and any related
coupons, which shall thereafter be deemed to be "Outstanding" only for the
purposes of Section 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under such
Securities, Guarantees and any related coupons and this Indenture insofar as
such Securities, Guarantees and any related coupons are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any related coupons to receive, solely from the trust
fund described in Section 1404 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on such Securities and any related coupons when such payments are due, (B)
the Company's and the Guarantor's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities or the related Guarantees as
contemplated by Section 1005, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and the Company's and Guarantor's obligation
under Section 607 and (D) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Company or the Guarantor, as the case may be, may exercise
its option under this Section 1402 notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities, Guarantees and any
related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's or Guarantor's exercise of the above option
applicable to this Section with respect to any Securities of or within a series,
the Company and the Guarantor shall be released from their obligations under
Section 803 and Sections 1006 through 1008 inclusive and, if specified pursuant
to Section 301, their obligations under any other covenant, with respect to such
Outstanding Securities, Guarantees and any related coupons on and after the date
the conditions set forth in Section 1404 are satisfied (hereinafter, "COVENANT
DEFEASANCE"), and such Securities, related Guarantees and any related coupons
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "OUTSTANDING" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities, related Guarantees and any related coupons, the Company or the
Guarantor, as the case may be, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of reference in any such covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 501(3) or
otherwise, as the case may be, but, except as specified above,
92
the remainder of this Indenture and such Securities and any related coupons
shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
related coupons:
(1) The Company or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an amount (in such
Currency in which such Securities and any related coupons are then
specified as payable at Stated Maturity), or (B) Government Obligations
applicable to such Securities (determined on the basis of the Currency in
which such Securities are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of (and premium, if
any), and interest, if any, under such Securities and any related coupons,
money in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
(which shall be expressed in a written certification thereof delivered to
the Company or the Guarantor, that is attached to an Officer's Certificate
delivered to the Trustee), to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, on such
Outstanding Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any) or
installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any related coupons on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any related coupons; PROVIDED that the Trustee shall have
been irrevocably instructed to apply such money or the proceeds of such
Government Obligations to said payments with respect to such Securities
and any related coupons. Before such a deposit, the Company or the
Guarantor, as the case may be, may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any portion
of such Outstanding Securities at a future date in accordance with the
terms of the Securities of such series and Article Eleven hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such Securities
or any related coupons shall have occurred and be continuing on the date
of such deposit or, insofar as paragraphs (5) and (6) of Section 501 are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement
93
or instrument to which the Company or the Guarantor, as the case may be,
is a party or by which it is bound.
(4) In the case of an election under Section 1402, the Company or
the Guarantor, as the case may be, shall have delivered to the Trustee an
Opinion of Counsel in the United States stating that (x) the Company or
the Guarantor, as the case may be, has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date
of execution of this Indenture, there has been a change in the applicable
U.S. federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such Outstanding
Securities and any related coupons will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
(5) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
(6) The Company or the Guarantor, as the case may be, 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 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with.
(7) In the case of an election under Section 1403, the Company or
the Guarantor, as the case may be, shall have delivered to the Trustee an
Opinion of Counsel in the United States to the effect that the Holders of
such Outstanding Securities will not recognize income, gain or loss for
U.S. federal income tax purposes as a result of such covenant defeasance
and will be subject to U.S. federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) The Company or the Guarantor, as the case may be, has
delivered to the Trustee either an Opinion of Counsel in Canada or a
ruling from Canada Revenue Agency to the effect that the Holders of such
Outstanding Securities will not recognize income, gain or loss for
Canadian federal or provincial income tax or other tax purpose as a result
of such defeasance or covenant defeasance and will be subject to Canadian
federal or provincial income tax and other tax on the same amounts, in the
same manner and at the same times as would have been the case had such
defeasance not occurred (and for the purposes of such opinion, such
Canadian counsel shall assume that Holders of the Securities include
Holders who are not resident in Canada).
(9) Neither the Company nor the Guarantor is an "insolvent person"
within the meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada) on the
date of such deposit or at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
94
(10) The Company or the Guarantor, as the case may be, has
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit shall not cause the Trustee or the trust so created to be subject
to the Investment Company Act of 1940, as amended.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any related coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as Paying Agent) as the Trustee
may determine, to the Holders of such Securities and any related coupons of all
sums due and to become due thereon in respect of principal (and premium, if any)
and interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
Either the Company or the Guarantor shall pay and both shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the Government Obligations deposited pursuant to Section 1404 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding
Securities and any related coupons.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company or the Guarantor, as applicable,
from time to time upon Company Request any money or Government Obligations (or
other property and any proceeds therefrom) held by it as provided in Section
1404 which, in the opinion of a nationally recognized firm of independent public
accountants (evidenced by an Officer's Certificate) delivered to the Trustee,
are in excess of the amount thereof which would then be required to be
95
deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's and Guarantor's obligations under this Indenture
and such Securities and any related coupons shall be revived and reinstated as
though no deposit had occurred pursuant to Section 1402 or 1403, as the case may
be, until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 1405; PROVIDED, HOWEVER, that if the
Company or the Guarantor makes any payment of principal of (or premium, if any)
or interest, if any, on any such Security or any related coupon following the
reinstatement of its obligations, the Company or the Guarantor shall be
subrogated to the rights of the Holders of such Securities and any related
coupons to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of one or more series of Securities may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in New York, New York, in Calgary,
Alberta or in London, England as the Trustee shall determine. Notice of
every meeting of Holders of one or more series of Securities, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided for in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company or the Guarantor, pursuant to
a Board Resolution, or the Holders of at least 10% in principal amount of
the Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company, the Guarantor or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine
the time
96
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 to the Trustee and the Holders of Securities of such
series as provided in paragraph (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or 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, any representatives of the Company and its counsel and
any representatives of the Guarantor and its counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; PROVIDED, HOWEVER, that, if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for lack of a quorum, the Persons entitled to vote 25% in principal amount of
the Outstanding Securities at the time shall constitute a quorum for the taking
of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
such series who have cast their votes; PROVIDED, HOWEVER, that, except as
limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture
97
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 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(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 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as its shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or by having
the signature of the person executing the proxy witnessed or guaranteed by
any trust company, bank or banker authorized by Section 104 to certify to
the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or by Holders of Securities as
provided in Section 1502(b), in which case the
98
Company, the Guarantor 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
(determined as specified in the definition of "Outstanding" in Section
101); PROVIDED, HOWEVER, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of
such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, another such copy to the Guarantor and
another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. COUNTERPARTS.
This Indenture may be executed in any number of counterparts (either by
facsimile or by original manual signature) each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same Indenture.
99
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 1601. GUARANTEE.
The Guarantor hereby fully, unconditionally and irrevocably guarantees
to each Holder of a Security of each series issued by the Company under this
Indenture and authenticated and delivered by the Trustee and to the Trustee on
behalf of each such Holder, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on such Security and the due and
punctual payment of the sinking fund or analogous payments referred to therein,
if any, when and as the same shall become due and payable, whether on the Stated
Maturity Date, by declaration of acceleration, call for redemption or otherwise,
according to the terms thereof and of this Indenture. In case of the failure of
the Company punctually to make any such payment of principal of (or premium, if
any) or interest, if any, or any such sinking fund or analogous payment, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, whether on the Stated Maturity Date or
by declaration of acceleration, notice of redemption or otherwise, and as if
such payment were made by the Company.
The Guarantor shall pay to the Holder such Additional Amounts as may
become payable in respect of any Guarantees under Section 1005 of this
Indenture.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely guarantor, and shall be absolute and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of such Security or this Indenture, any failure
to enforce the provisions of such Security or this Indenture, or any waiver,
modification or indulgence granted to the Company with respect thereto, by the
Holder of such Security or the Trustee or any other circumstance which may
otherwise constitute a legal or equitable discharge of a guarantor; PROVIDED,
HOWEVER, that, notwithstanding the foregoing, no such waiver, modification or
indulgence shall, without the consent of the Guarantor, increase the principal
amount of such Security, or increase the interest rate thereon, or increase any
premium payable upon redemption thereof, or alter the Stated Maturity Date
thereof, or increase the principal amount of any Original Issue Discount
Security that would be due and payable upon a declaration of acceleration or the
maturity thereof pursuant to Article Five of this Indenture. The Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of merger or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest or notice with respect to such
Security or the indebtedness evidenced thereby or with respect to any sinking
fund or analogous payment required under such Security and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of (and premium, if any) and interest, if any,
on such Security.
The Guarantor shall be subrogated to all rights of the Holder of such
Security and the Trustee against the Company in respect of any amounts paid to
such Holder by the Guarantor pursuant to the provisions of this Guarantee;
PROVIDED, HOWEVER, that the Guarantor shall not be entitled to enforce or to
receive any payments arising out of or based upon such right of
100
subrogation until the principal of (and premium, if any) and interest, if any,
on all Securities of the same series issued under this Indenture shall have been
paid in full.
Unless otherwise specified pursuant to Section 301 of this Indenture,
any Guarantee issued by the Guarantor shall be an unsecured, unsubordinated
obligation of the Guarantor, ranking PARI PASSU with all other existing and
future unsecured, unsubordinated indebtedness of the Guarantor, if any.
SECTION 1602. EXECUTION AND DELIVERY OF GUARANTEES.
The Guarantees to be endorsed on the Securities of each series issued
under the Indenture shall include the terms of the guarantees set forth in
Section 1601 and any other terms that may be set forth in the form established
pursuant to Section 204 with respect to such series. The Guarantor hereby agrees
to execute the Guarantees, in a form established pursuant to Section 204, to be
endorsed on each Security authenticated and delivered by the Trustee. The
Guarantees shall be executed on behalf of the Guarantor by any of its Chairman,
its President, its Chief Executive Officer, its Chief Financial Officer, its
Treasurer, its Corporate Secretary or a Vice-President. The signature of any of
these officers on the Guarantees may be manual or facsimile and may be imprinted
or otherwise reproduced on the Guarantees.
Guarantees bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Guarantor shall bind the
Guarantor, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or did not hold such offices at the date
of such Securities.
The delivery of any Security by a Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1601 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
* * * * *
101
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
ENCANA CORPORATION
By:
---------------------------------------
Name:
Title: Executive Vice-President &
Chief Financial Officer
By:
---------------------------------------
Name:
Title: Treasurer
ENCANA HOLDINGS FINANCE CORP.
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Trustee
By:
---------------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
ENCANA HOLDINGS FINANCE CORP.
[Insert title of sufficient description of Securities to be delivered]
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("UNITED STATES PERSON(S)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise EnCana Holdings Finance Corp. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
operating procedures if any applicable statement
A-1-1
herein is not correct on such date, and in the absence of any such notification
it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] [________] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
____________________________________________
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
ENCANA HOLDINGS FINANCE CORP.
[Insert title of sufficient description of Securities to be delivered]
This is to certify that based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] [_______] principal
amount of the above-captioned Securities (i) is owned by person(s) that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States Federal income taxation regardless of its source ("UNITED STATES
PERSON(S)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise EnCana Holdings Finance
Corp. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our
A-2-1
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[EUROCLEAR BANK S.A./N.A, as Operator
of the Euroclear System]
[CLEARSTREAM]
By _______________________________________
A-2-2