EXHIBIT 7.1
TRANSALTA CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
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INDENTURE
DATED AS OF _____________________ 2002
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TRANSALTA CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ____________ 2002
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
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Section 310(a)(1) ......................................................... 6.7
(a)(2) ......................................................... 6.7
(b) ......................................................... 6.8
(c) ......................................................... N.A.
Section 311(a) ......................................................... 5.1.
(b) ......................................................... 5.1.
(c) ......................................................... N.A.
Section 312(a) ......................................................... 7.1.
(b) ......................................................... 7.2.
(c) ......................................................... 7.1
Section 313(a) ......................................................... 7.2.
(b)(1) ......................................................... 7.2.
(b)(2) ......................................................... 7.2.
(c) ......................................................... 7.5, 6.1.
(d) ......................................................... 7.3.
Section 314(a) ......................................................... 7.5
(a)(4) ......................................................... 10.4
(b) ......................................................... 8.3.
(c)(1) ......................................................... 1.2
(c)(2) ......................................................... 1.2
(d) ......................................................... 8.3.
(e) ......................................................... 1.2
(f) ......................................................... N.A.
Section 315(a) ......................................................... 6.2.
(b), (c), (d) ......................................................... 6.1
Section 316(a)(last sentence) ......................................................... 1.1("Outstanding")
(a)(1)(A) ......................................................... 5.2, 5.12
(a)(1)(B) ......................................................... 5.13
(a)(2) ......................................................... N.A.
(b) ......................................................... 5.8
(c) ......................................................... 1.4(e)
Section 317(a)(1) ......................................................... 5.3
(a)(2) ......................................................... 5.4
(b) ......................................................... 10.3
Section 318(a) ......................................................... 1.11
(b) ......................................................... N.A.
(c) ......................................................... N.A.
N.A. means Not Applicable
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* Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the
Indenture.
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION............. 1
Section 1.1 Definitions................................................. 1
Section 1.2 Compliance Certificates and Opinions........................ 11
Section 1.3 Form of Documents Delivered to Trustee...................... 11
Section 1.4 Acts of Holders............................................. 11
Section 1.5 Notices, etc., to Trustee and Corporation................... 13
Section 1.6 Notice to Holders; Waiver................................... 13
Section 1.7 Effect of Headings and Table of Contents.................... 14
Section 1.8 Successors and Assigns...................................... 14
Section 1.9 Separability Clause......................................... 14
Section 1.10 Benefits of Indenture....................................... 14
Section 1.11 Governing Law............................................... 14
Section 1.12 Legal Holiday............................................... 14
Section 1.13 Agent for Service Submission to Jurisdiction; Waiver of
Immunities.................................................. 14
Section 1.14 Conversion of Currency...................................... 15
Section 1.15 Currency Equivalent......................................... 16
Section 1.16 No Recourse Against Others.................................. 16
Section 1.17 Multiple Originals.......................................... 16
Section 1.18 Waiver of Jury Trial........................................ 16
Section 1.19 CUSIP Numbers............................................... 16
ARTICLE 2. SECURITY FORMS...................................................... 16
Section 2.1 Forms Generally............................................. 16
Section 2.2 Form of Trustee's Certificate of Authentication............. 17
Section 2.3 Securities Issuable in Global Form.......................... 17
ARTICLE 3. THE SECURITIES...................................................... 18
Section 3.1 Amount Unlimited; Issuable in Series........................ 18
Section 3.2 Denominations............................................... 21
Section 3.3 Execution, Authentication, Delivery and Dating.............. 21
Section 3.4 Temporary Securities........................................ 22
Section 3.5 Registration, Registration of Transfer and Exchange......... 24
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities............ 27
Section 3.7 Payment of Principal and Interest; Interest Rights
Preserved; Optional Interest Reset.......................... 27
Section 3.8 Optional Extension of Stated Maturity....................... 29
Section 3.9 Persons Deemed Owners....................................... 30
Section 3.10 Cancellation................................................ 30
Section 3.11 Computation of Interest..................................... 31
Section 3.12 Currency and Manner of Payments in Respect of Securities.... 31
Section 3.13 Appointment and Resignation of Successor Exchange Rate
Agent....................................................... 33
ARTICLE 4. SATISFACTION AND DISCHARGE.......................................... 34
Section 4.1 Satisfaction and Discharge of Indenture..................... 34
Section 4.2 Application of Trust Money.................................. 35
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ARTICLE 5. REMEDIES............................................................ 35
Section 5.1 Events of Default........................................... 35
Section 5.2 Acceleration of Maturity; Rescission and Annulment.......... 36
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee..................................................... 37
Section 5.4 Trustee May File Proofs of Claim............................ 37
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities.................................................. 38
Section 5.6 Application of Money Collected.............................. 38
Section 5.7 Limitation on Suits......................................... 38
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................ 39
Section 5.9 Restoration of Rights and Remedies.......................... 39
Section 5.10 Rights and Remedies Cumulative.............................. 39
Section 5.11 Delay or Omission Not Waiver................................ 39
Section 5.12 Control by Holders.......................................... 39
Section 5.13 Waiver of Past Defaults..................................... 40
Section 5.14 Waiver of Stay or Extension Laws............................ 40
ARTICLE 6. THE TRUSTEE......................................................... 40
Section 6.1 Notice of Defaults.......................................... 40
Section 6.2 Certain Rights of Trustee................................... 40
Section 6.3 Trustee Not Responsible for Recitals or Issuance of
Securities.................................................. 41
Section 6.4 May Hold Securities......................................... 42
Section 6.5 Money Held in Trust......................................... 42
Section 6.6 Compensation and Reimbursement.............................. 42
Section 6.7 Corporate Trustee Required; Eligibility..................... 43
Section 6.8 Resignation and Removal; Appointment of Successor........... 43
Section 6.9 Acceptance of Appointment by Successor...................... 44
Section 6.10 Merger Conversion; Consolidation or Succession to
Business.................................................... 45
Section 6.11 Appointment of Authenticating Agent......................... 45
ARTICLE 7. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION............... 46
Section 7.1 Corporation to Furnish Trustee Names and Addresses of
Holders..................................................... 46
Section 7.2 Preservation of List of Names and Addresses of Holders...... 46
Section 7.3 Disclosure of Names and Addresses of Holders................ 47
Section 7.4 Reports by Trustee.......................................... 47
Section 7.5 Reports by the Corporation.................................. 47
ARTICLE 8. CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE............................................................... 48
Section 8.1 Corporation May Amalgamate or Consolidate, etc. Only on
Certain Terms............................................... 48
Section 8.2 Successor Person Substituted................................ 48
Section 8.3 Assignment of Rights........................................ 48
Section 8.4 Securities to Be Secured in Certain Events.................. 49
ARTICLE 9. SUPPLEMENTAL INDENTURES............................................. 49
Section 9.1 Supplemental Indentures without Consent of Holders.......... 49
Section 9.2 Supplemental Indentures with Consent of Holders............. 50
Section 9.3 Execution of Supplemental Indentures........................ 50
Section 9.4 Effect of Supplemental Indentures........................... 51
Section 9.5 Conformity with Trust Indenture Act......................... 51
Section 9.6 Reference in Securities to Supplemental Indentures.......... 51
Section 9.7 Notice of Supplemental Indentures........................... 51
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ARTICLE 10. COVENANTS........................................................... 51
Section 10.1 Payment of Principal, Premium, if any, and Interest......... 51
Section 10.2 Maintenance of Office or Agency............................. 51
Section 10.3 Money for Securities Payments to Be Held in Trust........... 52
Section 10.4 Statement as to Compliance.................................. 53
Section 10.5 Additional Amounts.......................................... 54
Section 10.6 Payment of Taxes and other Claims........................... 55
Section 10.7 Maintenance of Properties................................... 55
Section 10.8 Corporate Existence......................................... 55
Section 10.9 Maintenance of Books and Records............................ 55
Section 10.10 Restriction of Sales and Leaseback Transactions............. 55
Section 10.11 Insurance................................................... 56
Section 10.12 Negative Pledge............................................. 56
Section 10.13 Waiver of Certain Covenants................................. 56
ARTICLE 11. REDEMPTION OF SECURITIES............................................ 56
Section 11.1 Applicability of Article.................................... 56
Section 11.2 Election to Redeem Notice to Trustee........................ 56
Section 11.3 Selection by Trustee of Securities to be Redeemed........... 57
Section 11.4 Notice of Redemption........................................ 57
Section 11.5 Deposit of Redemption Price................................. 58
Section 11.6 Securities Payable on Redemption Date....................... 58
Section 11.7 Securities Redeemed in Part................................. 59
Section 11.8 Tax Redemption.............................................. 59
ARTICLE 12. SINKING FUNDS....................................................... 59
Section 12.1 Applicability of Article.................................... 59
Section 12.2 Satisfaction of Sinking Fund Payments with Securities....... 59
Section 12.3 Redemption of Securities for Sinking Fund................... 60
ARTICLE 13. REPAYMENT AT OPTION OF HOLDERS...................................... 61
Section 13.1 Applicability of Article.................................... 61
Section 13.2 Repayment of Securities..................................... 61
Section 13.3 Exercise of Option.......................................... 61
Section 13.4 When Securities Presented for Repayment Become Due and
Payable..................................................... 61
Section 13.5 Securities Repaid in Part................................... 62
ARTICLE 14. DEFEASANCE AND COVENANT DEFEASANCE.................................. 62
Section 14.1 Option to Effect Defeasance or Covenant Defeasance.......... 62
Section 14.2 Defeasance and Discharge.................................... 62
Section 14.3 Covenant Defeasance......................................... 63
Section 14.4 Conditions to Defeasance or Covenant Defeasance............. 63
Section 14.5 Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions....................... 64
Section 14.6 Reinstatement............................................... 65
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ARTICLE 15. MEETINGS OF HOLDERS OF SECURITIES................................... 65
Section 15.1 Purposes for Which Meetings May Be Called................... 65
Section 15.2 Call, Notice and Place of Meetings.......................... 65
Section 15.3 Persons Entitled to vote at Meetings........................ 66
Section 15.4 Quorum; Action.............................................. 66
Section 15.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.................................................... 67
Section 15.6 Counting Votes and Recording Action of Meetings............. 67
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INDENTURE, dated as of ____________________ 2002, between
TRANSALTA
CORPORATION, a Canadian corporation (herein called the "CORPORATION"), having
its principal office at ▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and
THE BANK OF
NEW YORK, a
New York banking corporation, as trustee (herein called
the "TRUSTEE").
RECITALS OF THE CORPORATION
The Corporation 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 Corporation to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Corporation in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 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 or in any other Article have the
meanings assigned to them in this Article or such other 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, and the terms "cash transaction" and "self-liquidating paper",
as used in Section 311 of the Trust Indenture Act, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"Generally Accepted Accounting Principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted in Canada at the date of such computation; and
(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.
"ACT", when used with respect to any Holder, has the meaning specified in
Section 1.4.
"ADDITIONAL AMOUNTS" has the meaning specified in Section 10.5.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ATTRIBUTABLE AMOUNT" means with respect to any sale and leaseback
transaction (as defined herein), as at the time of determination, the present
value (discounted at the rate of interest set forth or implicit in the terms of
such lease, compounded annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in the sale and
leaseback transaction.
"AUTHENTICATING AGENT" means any Person appointed by the Trustee to act on
behalf of the Trustee pursuant to Section 6.11 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 The City of
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 each
place in connection with which the term is used or in the financial community of
each such place. 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 the board of directors of the Corporation or any
duly authorized committee of such board.
"BOARD RESOLUTION" means a copy of a resolution certified by any officer of
the Corporation to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to
Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"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 Securities Exchange Act of 1934, 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 3.4.
"CONSOLIDATED NET TANGIBLE ASSETS" means all consolidated assets of the
Corporation as shown on the most recent audited consolidated balance sheet of
the Corporation, less the aggregate of the following amounts reflected upon such
balance sheet: (i) all goodwill, deferred assets, trademarks, copyrights and
other similar intangible assets; (ii) to the extent not already deducted in
computing such assets and without duplication, depreciation, depletion,
amortization, reserves and any other account which reflects a decrease in the
value of an asset or a periodic allocation of the cost of an asset; provided
that no deduction shall be made under this clause (ii) to the extent that such
account reflects a decrease in value or periodic allocation of the cost of any
asset referred to in clause (i) above; (iii) minority interests; (iv) current
liabilities; and (v) Non-Recourse Assets to the extent of the outstanding
Non-Recourse Debt financing such assets.
"CONSOLIDATED SHAREHOLDERS' EQUITY" means, without duplication, the
aggregate amount of shareholders' equity (including, without limitation, common
share capital, preferred share capital, contributed surplus and retained
earnings) of the Corporation as shown on the most recent audited consolidated
balance sheet of the Corporation, adjusted by the amount by which common share
capital, preferred share capital and contributed surplus has been increased or
decreased (as the case may be) from the date of such balance sheet to the
relevant date of determination, in accordance with Generally Accepted Accounting
Principles, together with the aggregate principal amount of obligations of the
Corporation in respect of Preferred Securities.
"CONVERSION DATE" has the meaning specified in Section 3.12(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency both
by the government of the country which issued such Foreign Currency and by a
central bank or other public institution of or within the
2
international banking community for the settlement of transactions, and
(ii) any currency unit (or composite currency) for the purposes for which it was
established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office of the
Trustee, at which at any particular time its corporate trust business shall be
administered, which office on the date of execution of this Indenture is located
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which, at
any particular time, its corporate agency business shall be conducted.
"corporation" includes corporations, associations, companies and business
trusts.
"CORPORATION" means the Person named as the "Corporation" 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
"Corporation" shall mean such Person's successors and assigns.
"CORPORATION REQUEST" or "CORPORATION ORDER" means a written request or
order signed in the name of the Corporation by any officer (under the corporate
seal of the Corporation or otherwise), and delivered to the Trustee.
"COUPON" means any interest coupon pertaining to a Bearer Security.
"CURRENCY" means any currency or currencies, composite currency or currency
unit or currency units, issued by the government of one or more countries or by
any recognized confederation or association of such governments.
"DEFAULT" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITORY FOR SECURITIES" means The Depository Trust Company, or any
successor, thereto.
"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 CURRENCY UNIT" has the meaning specified in
Section 3.12(g).
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning specified in
Section 3.12(f).
"ELECTION DATE" has the meaning specified in Section 3.12(h).
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels
Office, or its successor as operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EXCHANGE DATE" has the meaning specified in Section 3.4.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 3.1, a
New York Clearing House bank, designated pursuant to Section 3.1
or Section 3.13.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 3.2 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by any officer of the Corporation (under the
corporate seal of the Corporation or otherwise).
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Act of Title 11 of the United
States Code, as amended from time to time.
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"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising under:
(a) any interest swap agreement, forward rate agreement, floor, cap or
collar agreement, futures or options, insurance or other similar agreement
or arrangement, or any combination thereof, entered into or guaranteed by
the Corporation where the subject matter of the same is interest rates or
the price, value, or amount payable thereunder is dependent or based upon
the interest rates or fluctuations in interest rates in effect from time to
time (but, for certainty, shall exclude conventional floating rate debt);
(b) any currency swap agreement, cross-currency agreement, forward
agreement, floor, cap or collar agreement, futures or options, insurance or
other similar agreement or arrangement, or any combination thereof, entered
into or guaranteed by the Corporation where the subject matter of the same
is currency exchange rates or the price, value or amount payable thereunder
is dependent or based upon currency exchange rates or fluctuations in
currency exchange rates in effect from time to time; and
(c) any agreement for the making or taking of any commodity (including
natural gas, oil or electricity), any commodity swap agreement, floor, cap
or collar agreement or commodity future or option or other similar
agreements or arrangements, or any combination thereof, entered into or
guaranteed by the Corporation where the subject matter of the same is any
commodity or the price, value or amount payable thereunder is dependent or
based upon the price of any commodity or fluctuations in the price of any
commodity;
to the extent of the net amount due or accruing due by the Corporation
thereunder (determined by marking-to-market the same in accordance with their
terms).
"FOREIGN CURRENCY" means any Currency other than Currency of the United
States.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally accepted
accounting principles which are in effect from time to time in Canada.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.1, securities which are
(a) direct obligations of the government which issued the currency in which the
principal of or any premium or interest on such Securities of a particular
series or any Additional Amounts in respect thereof are payable or
(b) 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 or any Additional Amounts in respect thereof 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 a holder of a depositary receipt,
PROVIDED that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register.
"INDEBTEDNESS" means all items of indebtedness in respect of any amounts
borrowed (including obligations with respect to bankers' acceptances and
contingent reimbursement obligations relating to letters of credit and other
financial instruments) and all Purchase Money Obligations which, in accordance
with Generally Accepted Accounting Principles, would be recorded in the
financial statements as at the date as of which Indebtedness is to be
determined, and in any event including, without duplication: (i) obligations
secured by any Security Interest existing on property owned subject to such
Security Interest, whether or not the obligations secured thereby shall have
been assumed; and (ii) guarantees, indemnities, endorsements (other than
endorsements for collection in the ordinary course of business) or other
contingent liabilities in respect of obligations of another Person for
indebtedness of that other Person in respect of any amounts borrowed by them.
"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
4
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 3.1; 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 3.1, 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,
shall be deemed to mean 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.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, (i) for any conversion involving a currency
unit on the one hand and Dollars or any Foreign Currency on the other, the
exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 3.1 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (
New York City time) buying rate for such Foreign
Currency for cable transfers quoted in
New York City as certified for customs
purposes by the Federal Reserve Bank of
New York, and (iii) 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
New York City, London, England 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 3.1, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), 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.
"MATERIAL SUBSIDIARY" means, at any time, a Subsidiary (i) the total assets
of which represent more than 10% of the total assets of the Corporation
determined on a consolidated basis as shown in the most recent audited
consolidated balance sheet of the Corporation; or (ii) the total revenues of
which represent more than 10% of the total revenues of the Corporation
determined on a consolidated basis as shown in the consolidated income statement
of the Corporation for the four most recent fiscal quarters of the Corporation.
"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 ASSETS" means the assets created, developed, constructed or
acquired with or in respect of which Non-Recourse Debt has been incurred and any
and all receivables, inventory, equipment, chattel paper, intangibles and other
rights or collateral arising from or connected with the assets created,
developed, constructed or acquired (including the shares or other ownership
interests of a single purpose entity which hold
5
only such assets and other rights and collateral arising from or connected
therewith) and to which recourse of the lender of such Non-Recourse Debt (or any
agent, trustee, receiver or other Person acting on behalf of such lender) in
respect of such Indebtedness is limited in all circumstances (other than in
respect of false or misleading representations or warranties and customary
indemnities provided with respect to such financings).
"NON-RECOURSE DEBT" means any Indebtedness incurred to finance the creation,
development, construction or acquisition of assets and any increases in or
extensions, renewals or refundings of any such Indebtedness, provided that the
recourse of the lender thereof or any agent, trustee, receiver or other Person
acting on behalf of the lender in respect of such Indebtedness in respect
thereof is limited in all circumstances (other than in respect of false or
misleading representations or warranties and customary indemnities provided with
respect to such financings) to the assets created, developed, constructed or
acquired in respect of which such Indebtedness has been incurred and to any
receivables, inventory, equipment, chattel paper, intangibles and other rights
or collateral arising from or connected with the assets so created, developed,
constructed or acquired (including the shares or other ownership interests of a
single purpose entity which holds any such assets and other rights and
collateral arising therefrom or connected therewith) and to which the lender has
recourse.
"OFFICERS' CERTIFICATE" means a certificate signed by any two officers of
the Corporation in their capacities as officers of the Corporation and not in
their personal capacities, (under the corporate seal of the Corporation or
otherwise) and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Corporation, including an employee of the Corporation, and who shall be
acceptable to the Trustee.
"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 5.2.
"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 whose payment or redemption or
repayment at the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Corporation) in trust or set aside and segregated in trust by the
Corporation (if the Corporation shall act as its own Paying Agent) for the
Holders of such Securities; 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 Section 14.2
and 14.3, with respect to which the Corporation has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 3.6 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 bona fide purchaser in
whose hands such Securities are valid obligations of the Corporation;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (i) 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 5.2, (ii) 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 Corporation as set forth in an Exchange
Rate Officers' Certificate delivered to the Trustee, of the principal
6
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 (i) above) of such Security, (iii) 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 3.1, and (iv) Securities owned by the Corporation or any other obligor
upon the Securities or any Affiliate of the Corporation 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 a Responsible Officer of 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
certifies to the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Corporation or any other obligor upon
the Securities or any Affiliate of the Corporation or such other obligor.
"PAYING AGENT" means any Person (including the Corporation acting as Paying
Agent) authorized by the Corporation to pay the principal of (or premium, if
any) or interest, if any, on any Securities on behalf of the Corporation.
"PERMITTED ENCUMBRANCE" means any of the following:
(a) any Security Interest existing as of the date of the first issuance by
the Corporation of Securities issued pursuant to this Indenture, or
arising thereafter pursuant to contractual commitments entered into prior
to such issuance;
(b) any Security Interest created, incurred or assumed to secure any
Purchase Money Obligation;
(c) any Security Interest created, incurred or assumed to secure any
Non-Recourse Debt;
(d) any Security Interest in favor of any Wholly-Owned Subsidiary;
(e) any Security Interest on property of a corporation or its Subsidiaries
which Security Interest exists at the time such corporation is merged
into, or amalgamated or consolidated with the Corporation or such
property is otherwise, directly or indirectly acquired by the Corporation
other than a Security Interest incurred in contemplation of such merger,
amalgamation, consolidation or acquisition;
(f) any Security Interest securing any Indebtedness to any bank or banks or
other lending institution or institutions incurred in the ordinary course
of business and for the purpose of carrying on the same, repayable on
demand or maturing within 12 months of the date when such Indebtedness is
incurred or the date of any renewal or extension thereof;
(g) any Security Interest on or against cash or marketable debt securities
pledged to secure Financial Instrument Obligations;
(h) any Security Interest in respect of:
(i) liens for taxes, duties and assessments not at the time overdue or
any liens securing workmen's compensation assessments, unemployment
insurance or other social security obligations; PROVIDED, HOWEVER,
that if any such liens, duties or assessments are then overdue the
Corporation or the applicable Subsidiary thereof shall be contesting
the same in good faith;
(ii) any liens or rights of distress reserved in or exercisable under
any lease for rent and for compliance with the terms of such lease;
(iii) any obligations or duties, affecting the property of the
Corporation or any Subsidiary thereof, to any municipality or
governmental, statutory or other public authority, with respect to
any franchise, permit, licence or grant and any defects in title to
structures or other facilities arising solely from the fact that
such structures or facilities are constructed or installed on lands
held by the Corporation or any Subsidiary thereof, under
franchises, permits, licences or other grants, from a municipality
or other such authority, which obligations, duties and defects in
the aggregate
7
do not materially impair the use of such property, structures or
facilities for the purpose for which they are held by the
Corporation or any Subsidiary thereof;
(iv) any deposits or liens in connection with contracts, bids, tenders
or expropriation proceedings, surety or appeal bonds, costs of
litigation when required by law, public and statutory obligations,
liens or claims incidental to current construction, builders',
mechanics', labourers', materialmen's, warehousemen's, carriers'
and other similar liens;
(v) the right reserved to or vested in any municipality or governmental,
statutory or other public authority by any statutory provision or by
the terms of any lease, license, franchise, grant or permit, that
affects any land, to terminate any such lease, license, franchise,
grant or permit or to require annual or other periodic payments as a
condition to the continuance thereof;
(vi) any undetermined or inchoate liens and charges incidental to the
current operations of the Corporation or any Subsidiary thereof
that have not at the time been filed against the Corporation;
PROVIDED, HOWEVER, that if any such lien or charge shall have been
filed, the Corporation or the applicable Subsidiary thereof shall
be contesting the same in good faith;
(vii) any Security Interest the validity of which is being contested at
the time by the Corporation or the applicable Subsidiary thereof in
good faith or payment of which has been provided for by deposit
with the Trustee or another trustee of debt securities issued by
the Corporation or the applicable Subsidiary thereof of an amount
in cash sufficient to pay the same in full;
(viii) any easements, rights-of-way and servitudes (including, without in
any way limiting the generality of the foregoing, easements,
rights-of-way and servitudes for railways, sewers, ▇▇▇▇▇, drains,
gas and water mains or electric light and power or telephone and
telegraph conduits, poles, wires and cables) that, in the opinion
of the Corporation, will not in the aggregate materially and
adversely impair the use or value of the land concerned for the
purpose for which it is held by the Corporation or any Subsidiary
thereof;
(ix) any security to a public utility or any municipality or
governmental, statutory or other public authority when required by
such utility, municipality or other such authority in connection
with the operations of the Corporation or any Subsidiary thereof;
(x) any liens and privileges arising out of judgments or awards with
respect to which the Corporation or the applicable Subsidiary
thereof shall be prosecuting an appeal or proceedings for review and
with respect to which it shall have secured a stay of execution
pending such appeal or proceedings for review; and
(xi) any other liens of a nature similar to the foregoing which do not
in the opinion of the Corporation materially impair the use of the
property subject thereto or the operation of the business of the
Corporation or the applicable Subsidiary thereof or the value of
such property for the purpose of such business;
(i) any extension, renewal, alteration or replacement (or successive
extensions, renewals, alterations or replacements) in whole or in part,
of any Security Interest referred to in the foregoing clauses (a)
through (h) inclusive, provided the extension, renewal, alteration or
replacement of such Security Interest is limited to all or any part of
the same property that secured the Security Interest extended, renewed,
altered or replaced (plus improvements on such property) and the
principal amount of the Indebtedness secured thereby is not increased;
and
(j) any other Security Interest if the aggregate amount of Indebtedness
secured pursuant to this clause (j) (together with the Attributable
Amount of any sale and leaseback transaction) does not exceed 20% of
Consolidated Net Tangible Assets.
"PERSON" means any individual, corporation, general or limited, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
8
"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 3.1 and 10.2.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PREFERRED SECURITIES" means securities which on the date of issue thereof
by a Person: (i) have a term to maturity of more than 30 years; (ii) rank
subordinate to the unsecured and unsubordinated Indebtedness of such Person
outstanding on such date; (iii) entitle such person to defer the payment of
interest thereon for more than four years without thereby causing an event of
default in respect of such securities to occur; and (iv) entitle such Person to
satisfy the obligation to make payments of deferred interest thereon from the
proceeds of the issuance of its shares.
"PURCHASE MONEY OBLIGATION" means any monetary obligation created or assumed
as part of the purchase price of real or tangible personal property, whether or
not secured, any extensions, renewals, alterations or replacements of any such
obligation, provided that the principal amount of such obligation outstanding on
the date of such extension, renewal, alteration or replacement is not increased
and further provided that any security given in respect of such obligation shall
not extend to any property other than the property acquired in connection with
which such obligation was created or assumed and fixed improvements, if any,
erected or constructed thereon.
"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,
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 3.1.
"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.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any vice
president, any assistant treasurer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above-designated officers, 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.
"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 INTEREST" means any mortgage, charge, pledge, lien, encumbrance,
assignment by way of security, title retention agreement or other security
interest whatsoever, howsoever created or arising, whether absolute or
contingent, fixed or floating, perfected or not, which secures payment or
performance of an obligation.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 3.5.
9
"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 3.7.
"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 3.8.
"SUBSIDIARY" means, in relation to a Person (i) any corporation of which at
least a majority of the outstanding shares having by the terms thereof ordinary
voting power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time shares of any other class or classes of
such corporation might have voting power by reason of the happening of any
contingency, unless the contingency has occurred and then only for as long as it
continues) is at the time directly, indirectly or beneficially owned or
controlled by the Person or one or more of its Subsidiaries, or the Person and
one or more of its Subsidiaries; (ii) any partnership of which the Person or one
or more of its Subsidiaries, or the Person and one or more of its Subsidiaries:
(a) directly, indirectly or beneficially own or control more than 50% of the
income, capital, beneficial or ownership interests (however designated) thereof;
and (b) is a general partner, in the case of a limited partnership, or is a
partner that has authority to bind the partnership, in all other cases; or
(iii) any other Person of which at least a majority of the income, capital,
beneficial or ownership interests (however designated) are at the time directly,
indirectly or beneficially owned or controlled by the first-mentioned Person or
one or more of its Subsidiaries, or the Person and one or more of its
Subsidiaries.
"TRUST INDENTURE ACT" 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 9.5.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, PROVIDED, HOWEVER, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean only the Trustee with respect to
Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to any
Securities pursuant to Section 3.1, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"VALUATION DATE" has the meaning specified in Section 3.12(c).
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of the Corporation that the
Corporation directly or indirectly beneficially owns 100% of the outstanding
shares having by the terms thereof ordinary voting power to elect a majority of
the board of directors of such Subsidiary or owns, directly or indirectly, 100%
of the income, capital, beneficial or ownership interests (however designated)
thereof.
10
"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 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Corporation to the Trustee to take
any action under any provision of this Indenture, the Corporation shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 10.4)
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 1.3 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 Corporation 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 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 Corporation stating that the information with respect to such
factual matters is in the possession of the Corporation 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.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 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
11
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 Corporation. 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 (subject to Section 6.2 hereof) conclusive in
favor of the Trustee and the Corporation, 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 15.6.
(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 and in accordance with such reasonable
rules as the Trustee may determine, and the Trustee may in any instance require
further proof with respect to any of the matters referred in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of commencement and the date of
termination of holding the same, shall be proved by the Security Register.
(d) The ownership, 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 or other depositary, wherever situated,
if such certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Corporation 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 ownership, principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner that the Trustee
deems sufficient.
(e) If the Corporation shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Corporation 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 Corporation shall have no obligation to do
so. Notwithstanding Section 316(c) of the Trust Indenture Act, such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; PROVIDED that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
12
(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 Corporation in
reliance thereon, whether or not notation of such action is made upon such
Security.
Section 1.5 NOTICES, ETC., TO TRUSTEE AND CORPORATION.
Any request, demand, authorization, direction, notice, consent, waiver or
other 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 Corporation 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/Global Finance Unit, or
(2) the Corporation 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 Corporation
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 Corporation.
Section 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Corporation 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 directed by the Corporation 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 3.1, 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 The City of 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 of 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.
Any request, demand, authorization, direction, notice, consent or waiver or
other Act 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.
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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 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Corporation shall bind
its successors and assigns, whether so expressed or not.
Section 1.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10 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 1.11 GOVERNING LAW.
This Indenture, the Securities and Coupons shall be governed by and
construed in accordance with the law of the State of New York. 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. If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
prevail. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
Section 1.12 LEGAL HOLIDAY.
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 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 made on the Interest Payment Date or Redemption Date or sinking
fund payment date, or at the Stated Maturity or Maturity; PROVIDED that no
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 1.13 AGENT FOR SERVICE SUBMISSION TO JURISDICTION; WAIVER OF
IMMUNITIES.
By the execution and delivery of this Indenture, the Corporation
(i) acknowledges that it has irrevocably designated and appointed CT Corporation
System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 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 state court in the City of 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 on CT Corporation System and written notice of said
service to the Corporation (mailed or delivered to the Corporation, attention:
Executive Vice-President and
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General Counsel, at its principal office specified in the first paragraph of
this Indenture and in the manner specified in Section 1.5 hereof), shall be
deemed in every respect effective service of process upon the Corporation in any
such suit or proceeding. The Corporation 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 System in full force and effect so long as any of the Securities
shall be outstanding.
To the extent that the Corporation has or hereafter may acquire any immunity
from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Corporation
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
The Corporation 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 1.14 CONVERSION OF CURRENCY.
The Corporation covenants and agrees that the following provisions shall
apply to conversion of Currency in the case of the Securities and this
Indenture:
(a) (i) If for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to convert into
any other Currency (the "Judgment Currency") an amount due or contingently
due under the Securities of any series and this Indenture (the "Required
Currency"), then the conversion shall be made at the rate of exchange
prevailing on the Business Day before the day on which a final judgment
which is not appealable or is not appealed is given or the order of
enforcement is made, as the case may be (unless a court shall otherwise
determine).
(ii) If there is a change in the rate of exchange prevailing between the
Business Day before the day on which the judgment referred to in (i) 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 Corporation 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 Corporation 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 Corporation
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 Corporation 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 Corporation may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b) of this Section
shall constitute separate and independent obligations of the Corporation from
its other obligations under the Securities and this Indenture, shall give rise
to separate and independent causes of action against the Corporation 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
Corporation 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 Corporation or the applicable liquidator.
In the case of Subsection (b) above, the amount of
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such deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any liquidating
distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean, if the Canadian Currency is
the Judgment Currency and United States Currency is the Required Currency, or
vice versa the Bank of Canada noon rate for purchases on the relevant date of
the Required Currency with the Judgment Currency, as reported by Telerate on
screen 3194 (or such other means of reporting the Bank of Canada noon rate as
may be agreed upon by the Corporation and the Trustee and includes any premiums
and costs of exchange payable.
Section 1.15 CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes of the
construction of the terms of this Indenture or of the Securities, in the event
that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER CURRENCY") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) on the date of determination.
Section 1.16 NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the Corporation
shall not have any liability for any obligations of the Corporation under the
Securities or this Indenture for any claim based on, in respect of or by reason
of such obligations or their creation. By accepting a Security, each Holder
shall waive and release all such liability. Such waiver and release shall be
part of the consideration for the issue of the Securities.
Section 1.17 MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement. One signed copy is enough to prove this Indenture.
Section 1.18 WAIVER OF JURY TRIAL
Each of the Corporation and the Trustee hereby irrevocably waives to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Indenture, the
Securities or any transactions contemplated hereby.
Section 1.19 CUSIP NUMBERS
The Corporation in issuing any series of the Securities may use CUSIP
numbers, if then generally in use, and thereafter with respect to such series,
the Trustee may use such numbers in any notice of redemption or exchange with
respect to such series provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Corporation will promptly notify the Trustee of
any change in the CUSIP numbers.
ARTICLE 2.
SECURITY FORMS
Section 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer Securities,
if any, of each series and related Coupons shall be in substantially the forms
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the forms of Securities of
any series are established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of
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such action shall be certified by an officer of the Corporation and delivered to
the Trustee at or prior to the delivery of the Corporation Order contemplated by
Section 3.3 for the authentication and delivery of such Securities. 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 3.1, Bearer Securities
shall have interest Coupons attached.
The Trustee's certificate of authentication on all Securities shall be in
substantially the form set forth in this Article.
The definitive Securities and Coupons shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities or Coupons. A Form of Security is attached as
Exhibit A hereto, but a Security may be in any form approved by the Board of
Directors of the Corporation in any Board Resolution pursuant to Section 3.1.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 6.11, 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 therein referred to
in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
Authorized Signatory
Section 2.3 SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global form, as
specified as contemplated by Section 3.1, then, notwithstanding clause (10) of
Section 3.1, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Corporation Order to be delivered to the Trustee pursuant to
Section 3.3 or Section 3.4. Subject to the provisions of Section 3.3 and, if
applicable, Section 3.4, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or in the applicable Corporation Order. If a
Corporation Order pursuant to Section 3.3 or Section 3.4 has been, or
simultaneously is, delivered, any instructions by the Corporation with respect
to endorsement or delivery or redelivery of a Security in global form shall be
in writing but need not comply with Section 1.2 and need not be accompanied by
an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Corporation and the Corporation delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of
17
Securities represented thereby, together with the written statement contemplated
by the last sentence of Section 3.3.
Notwithstanding the provisions of Section 3.7, unless otherwise specified as
contemplated by Section 3.1, 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.
Notwithstanding the provisions of Section 3.9 and except as provided in the
preceding paragraph, the Corporation, the Trustee and any agent of the
Corporation or the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or Clearstream.
ARTICLE 3.
THE SECURITIES
Section 3.1 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 and, except as otherwise
provided in this Indenture, each such series shall be unsecured and shall rank
pari passu with each other and with all other unsecured and unsubordinated
indebtedness for borrowed money of the Corporation. 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 3.3, set forth in, or determined in
the manner provided in, an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for
the matters set forth in clauses (1), (2) and (19) below), if so provided, may
be determined from time to time by the Corporation 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 specific designation 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 3.4, 3.5, 3.6, 9.6, 11.7 or 13.5);
(3) the extent and manner, if any, to which payment on or in respect of
the Securities of the series will be senior or will be subordinated to the
prior payment of other liabilities and obligations of the Corporation;
(4) the percentage or percentages of principal amount at which the
Securities of the series will be issued;
(5) the date or dates, or the method by which such date or dates will be
determined or extended, on which the principal (and premium, if any) of the
Securities of the series is payable;
(6) 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;
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(7) the place or places, if any, other than the Corporate Trust Office,
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 1.5, the place or places where notices or demands to or
upon the Corporation in respect of the Securities of the series and this
Indenture may be served, the extent to which, or the manner in which, any
interest payment or Additional Amounts on a global Security on an Interest
Payment Date, will be paid and the manner in which any principal of or
premium, if any, on any global Security will be paid;
(8) 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
Corporation, if the Corporation is to have that option;
(9) the obligation, if any, of the Corporation 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;
(10) 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;
(11) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.2
or the method by which such portion shall be determined;
(13) 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 provision applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 3.12;
(14) 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;
(15) 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
Corporation 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 3.12;
(16) the designation of the initial Exchange Rate Agent, if any;
(17) the applicability, if any, of Section 14.2 and/or 14.3 to the
Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen that shall be
applicable to the Securities of the series;
(18) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(19) any deletions from, modifications of or additions to the Events of
Default or covenants (including any deletions from, modifications of or
additions to Section 10.13) of the Corporation with respect to
19
Securities of the series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;
(20) 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 than in the manner provided in
Section 3.5; 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 exchange may be made and if Securities of
the series are to be issuable in global form, the identity of any initial
depositary therefor;
(21) 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;
(22) 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 Securities 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 3.4;
(23) 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;
(24) 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;
(25) whether, under what circumstances and the Currency in which the
Corporation will pay Additional Amounts 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 Corporation will have the option
to redeem such Securities rather than pay such Additional Amounts (and the
terms of any such option);
(26) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Corporation),
the terms and conditions upon which such Securities will be so convertible
or exchangeable; and
(27) any other terms, conditions, rights and preferences (or limitations
on such rights and preferences) relating to the series which do not apply
generally to the Securities (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 such Board Resolution (subject to Section 3.3)
and set forth in such Officers' Certificate or in any such indenture
supplemental hereto. Not all Securities of any one series need be issued at the
same time, and, unless otherwise provided, a series may be reopened for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken pursuant
to one or more Board Resolutions, such Board Resolutions shall be delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the series.
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Section 3.2 DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 3.1. 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. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities in or pursuant
to this Indenture.
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any Coupons appertaining thereto shall be executed on
behalf of the Corporation by any two officers of the Corporation, under its
corporate seal reproduced thereon. 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 or Coupons.
Securities or Coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Corporation shall
bind the Corporation, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or Coupons 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 Corporation may deliver Securities of any series together with
any Coupon appertaining thereto, executed by the Corporation to the Trustee for
authentication, together with a Corporation Order for the authentication and
delivery of such Securities, and the Trustee in accordance with such Corporation
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 3.1, 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 B-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 3.4, 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 3.6,
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 Corporation Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining terms of particular
Securities of such series such as interest rate, stated maturity, date of
issuance and date from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any Coupons have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities and any Coupons have been
established in conformity with the provisions of this Indenture;
(c) that such Securities together with any Coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
Corporation to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with
this
21
Indenture and issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute the legal,
valid and binding obligations of the Corporation, enforceable against the
Corporation in accordance with their terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
transfer and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights, (ii) general equitable
principles and (iii) such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such Securities
and any coupons;
(d) that all laws and requirements in respect of the execution and
delivery by the Corporation of such Securities, any coupons and of the
supplemental indentures, if any, have been complied with and that
authentication and delivery of such Securities any Coupons and the execution
and delivery of the supplemental indenture, if any, by the Trustee will not
violate the terms hereunder;
(e) that the Corporation has the corporate power to issue such
Securities and any Coupons and has duly taken all necessary corporate action
with respect to such issuance; and
(f) that the issuance of such Securities and any Coupons will not
contravene the articles of incorporation or by-laws of the Corporation.
Notwithstanding the provisions of Section 3.1 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Corporation 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 3.1.
No Security or Coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered hereunder
and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Corporation, and the Corporation shall deliver
such Security to the Trustee for cancellation as provided in Section 3.10
together with a written statement (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel) stating that such Security
has never been issued and sold by the Corporation, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Corporation may execute, and upon Corporation Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Corporation 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 such
series upon surrender of the temporary Securities of such series at the office
or agency of the
22
Corporation 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 the unmatured Coupons appertaining thereto), the
Corporation shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same
series of authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security; and
PROVIDED FURTHER that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 3.3. 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"), 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 Corporation shall deliver to the Trustee definitive
Securities, in aggregate principal amount equal to the principal amount of such
temporary global Security, executed by the Corporation. On or after the Exchange
Date such temporary global Security shall be surrendered by the Common
Depositary to the Trustee, as the Corporation'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 3.1, 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 B-2 to this Indenture (or in such other form as may be
established pursuant to Section 3.1); 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 3.3.
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 B-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.1), 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 deliverable only outside
the Untied 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 3.1, 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 B-2 to this
Indenture (or in such other form as may be established pursuant to
23
Section 3.1), for credit without further interest thereon on or after such
Interest Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date and who have each delivered to Euroclear or Clearstream, as the case may
be, a certificate dated no earlier than 15 days prior to the Interest Payment
Date occurring prior to such Exchange Date in the form set forth in Exhibit B-1
to this Indenture (or in such other form as may be established pursuant to
Section 3.1). 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 3.3 of this Indenture and the interests of the Persons who
are the beneficial owners of the temporary global Security with respect to which
such certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of certification
if such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal (or premium, if any) or interest, if any, owing with respect to a
beneficial interest in a temporary global Security will be made unless and until
such interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
Clearstream and not paid as herein provided shall be returned to the Trustee no
later than one month prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Corporation in accordance with
Section 10.3.
Section 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Corporation shall cause to be kept at the Corporate Trust Office of the
Trustee a register for each series of Registered Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any other office
or agency of the Corporation 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 Corporation shall provide for
the registration of Registered Securities and of transfers of 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 for each series shall be open to inspection by the
applicable security registrar (the "SECURITY REGISTRAR"). The Trustee is hereby
initially appointed as Security Registrar for the purpose of registering
Registered Securities and transfers of Registered Securities as herein provided.
The Corporation 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
Corporation and shall have accepted such appointment by the Corporation. 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
Corporation shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Corporation shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities, which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 3.1, 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 3.3) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as contemplated
by Section 3.1, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, with all
unmatured Coupons and all matured Coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured Coupon
or Coupons or matured Coupon or Coupons in
24
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Corporation 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 Corporation 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 10.2, 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 Corporation
shall execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated
by Section 3.1, any permanent global Security shall be exchangeable only as
provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 3.1 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 Corporation 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 Corporation. 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 Corporation Order with respect thereto to the Trustee, as the
Corporation'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 such Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
in which case the definitive Securities exchanged for the global Security shall
be issuable only in the form in which the Securities are issuable, as provided
in or pursuant to this Indenture) 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.
25
If at any time the Depositary for Securities of a series notifies the
Corporation 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 Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Corporation shall appoint a successor depositary with
respect to the Securities for such series. If a successor to the Depositary for
Securities is not appointed by the Corporation within 90 days after the
Corporation receives such notice or becomes aware of such condition, as the case
may be, the Corporation's election pursuant to Section 3.1 shall no longer be
effective with respect to the Securities for such series and the Corporation
will execute, and the Trustee, upon receipt of a Corporation Order for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive registered
form, in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
The Corporation 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 Corporation will execute, and the Trustee, upon receipt of a
Corporation Order for the authentication and delivery of definitive Securities
of such series, will authenticate and deliver Securities of such series in
definitive registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the global Security or
Securities representing such series in exchange for such global Security or
Securities.
Upon the exchange of a global Security for Securities in definitive
registered form, such global Security shall be cancelled by the Trustee.
Securities issued in exchange for a global Security pursuant to this Section
shall be registered in such names and in such authorized denominations as the
depositary for such global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Corporation evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Corporation or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer, in form satisfactory to the Corporation 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 Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6, 11.7 or 13.5 not involving any transfer.
The Corporation 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 11.3 or 12.3 and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities of
the series are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if Securities of the series are also
issuable as Registered Securities and there is no publication, the mailing of
the relevant notice of redemption, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part, or
(iii) to exchange any Bearer Security so selected for redemption except that, to
the extent provided with respect to such Bearer Security, such 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 with written instruction for payment consistent with the provisions
of this Indenture, 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.
26
Section 3.6 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 Corporation shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
Security or coupon has become or is about to become due and payable, the
Corporation 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 Corporation and 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 Corporation or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Corporation shall execute and upon
Corporation Order the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security for
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Corporation in its discretion may, instead
of issuing a new Security, pay such 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 10.2, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 3.1, 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 Corporation
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
obligation of the Corporation, 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 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 3.7 PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 3.1 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 Corporation
maintained for such purpose pursuant to Section 10.2; 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 Corporation's option be paid by
(i) mailing a check for such interest, payable to or upon the written order of
27
the Person entitled thereto pursuant to Section 3.9, to the address of such
Person as it appears on the Security Register or (ii) wire transfer to an
account located in the United States maintained by the payee (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 Corporation 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 3.7(a).
Unless otherwise provided as contemplated by Section 3.1 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 3.1, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to each of Euroclear and Clearstream with respect to
that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "DEFAULTED INTEREST")
may be paid by the Corporation, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Corporation 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 Corporation
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 Corporation 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 3.1 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(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 Corporation of
such Special Record Date and, in the name and at the expense of the
Corporation, 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 1.6, 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 Corporation 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 Corporation to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 3.7(b) may be made applicable to any
series of Securities pursuant to Section 3.1 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 3.1). 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 Corporation on
the date or dates specified on the face of such
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Security (each an "OPTIONAL RESET DATE"). The Corporation may exercise such
option with respect to such Security by notifying the Trustee of such exercise
at least 50 but not more than 60 days prior to an Optional Reset Date for such
Security, which notice shall specify the information to be included in the Reset
Notice (as defined). Not later than 40 days prior to each Optional Reset Date,
the Trustee shall transmit, in the manner provided for in Section 1.6, to the
Holder of any such Security a notice (the "RESET NOTICE") indicating whether the
Corporation 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 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 Corporation 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 1.6,
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 Corporation 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 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 3.8 may be made applicable to any series of
Securities pursuant to Section 3.1 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 3.1). The Stated
Maturity of any Security of such series may be extended at the option of the
Corporation for the period or periods specified on the face of such Security
(each an "EXTENSION PERIOD") up to but not beyond the date set forth on the face
of such Security. The Corporation 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 Corporation
exercises such option, the Trustee shall transmit, in the manner provided for in
Section 1.6, 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 Corporation 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.
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Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Corporation 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 1.6, 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 Corporation extends the Stated Maturity of any Security, the Holder
will have the option to elect repayment of such Security by the Corporation 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 Corporation 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 3.9 PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Corporation, the Trustee and any agent of any of the foregoing may
treat the Person in whose name such Registered Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 3.5 and 3.7) interest, if any, on such
Registered Security and for all other purposes whatsoever, whether or not such
Security be overdue, and none of the Corporation, the Trustee or any agent of
any of the foregoing shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass
by delivery. The Corporation, the Trustee and any agent of the Corporation 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
Corporation, the Trustee or any agent of the Corporation or the Trustee shall be
affected by notice to the contrary.
The Depositary for Securities may be treated by the Corporation, the
Trustee, and any agent of the Corporation or the Trustee as the owner of such
global Security for all purposes whatsoever. None of the Corporation, 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 the foregoing, with respect to any global Security, nothing
herein shall prevent the Corporation, the Trustee, or any agent of any of the
foregoing 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 3.10 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
Corporation may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Corporation 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 Corporation has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. If the Corporation shall so acquire any of the Securities, however,
then, unless provided otherwise in a
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supplemental indenture relating to a series of Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
procedures and certification of their disposal delivered to the Corporation
unless by Corporation Order the Corporation shall direct that cancelled
Securities be returned to it.
Section 3.11 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1 with respect to
any Securities, interest, if any, on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months. For the
purposes only of the disclosure required by the INTEREST ACT (Canada), and
without affecting the amount of interest payable to any Holder or the
calculation of interest on any Securities, if any rate of interest on any
Securities is calculated on the basis of a deemed year which contains fewer days
than the actual number of days in the calendar year of calculation, such rate of
interest shall be expressed as a yearly rate for the purposes of the INTEREST
ACT (Canada) by multiplying such rate of interest by the actual number of days
in the calendar year of calculation and dividing it by the number of days in
such deemed year. Notwithstanding the foregoing, and for the purposes only of
disclosure required by the INTEREST ACT (Canada), and without affecting the
amount of interest payable to any Holder or the calculation of interest on any
Securities, whenever interest to be paid under a Security is to be calculated on
the basis of a year of 360 days consisting of twelve 30-day months, the yearly
rate of interest to which the rate determined pursuant to such calculation is
equivalent during any particular period is the rate so determined multiplied by
a fraction of which:
(a) the numerator is the product of:
(i) the actual number of days in the calendar year in which the same
is to be ascertained, and
(ii) the sum of (A) the product of (x) 30 and (y) the number of
complete months elapsed in the relevant period and (B) the number of days
elapsed in any incomplete month in the relevant period, and
(b) the denominator is the product of (i) 360 and (ii) the number of
days in the relevant period.
Section 3.12 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 or Bearer Security, as the case may be, is payable. The
provisions of this Section 3.12 may be modified or superseded with respect to
any Securities pursuant to Section 3.1.
(b) It may be provided pursuant to Section 3.1 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 3.1, 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
Corporation has deposited funds pursuant to Article Four or Fourteen or with
respect to which a notice of redemption has been given by the Corporation 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
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shall not have delivered any such election to the Trustee not later than the
close of business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in
Section 3.12(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 3.1, if the election
referred to in paragraph (b) above has been provided for pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1, 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
Corporation 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 3.1 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 3.1, on the second Business Day preceding such payment date
the Corporation 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 3.1, 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
Corporation 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 3.1, the
Dollar amount to be paid by the Corporation 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, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the Holder of a
Registered Security denominated in any Currency shall have elected to be paid in
another Currency as provided in paragraph (b) above, and a Conversion Event
occurs with respect to such elected Currency, such Holder shall receive payment
in the Currency in which payment would have been made in the absence of such
election; and if a Conversion Event occurs with respect to the Currency in which
payment would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be determined by
the Exchange Rate Agent and shall be obtained for each subsequent payment date
by converting the specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined by the
Exchange Rate Agent and subject to the provisions of paragraph (h) below shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 3.12 the following terms shall have the
following meanings:
A "Component Currency" shall mean any Currency which, on the Conversion
Date, was a component currency of the relevant currency unit.
32
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were represented
in the relevant currency unit, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is altered by
way of combination or subdivision, the Specified Amount of such Component
Currency shall be divided or multiplied in the same proportion. If after the
Conversion Date two or more Component Currencies are consolidated into a
single currency, the respective Specified Amounts of such Component
Currencies shall be replaced by an amount in such single Currency equal to
the sum of the respective Specified Amounts of such consolidated Component
Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter
be a Component Currency. If after the Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market
Exchange Rate on the date of such replacement equal to the Dollar Equivalent
value of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division and such amounts shall
thereafter be Specified Amounts and such currencies shall thereafter be
Component Currencies. If, after the Conversion Date of the relevant currency
unit, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted into
Dollars at the Market Exchange Rate in effect on the Conversion Date of such
Component Currency.
"Election Date" shall mean the date for any series of Registered
Securities as specified pursuant to clause (15) of Section 3.1 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, the Dollar Equivalent of the Currency
Unit, the Market Exchange Rate and changes in the Specified Amounts 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
Corporation, 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 Corporation and the Trustee of any such decision or
determination.
In the event that the Corporation determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Corporation 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 1.6 to the affected Holders) specifying the Conversion
Date. In the event the Corporation so determines that a Conversion Event has
occurred with respect to any Currency Unit in which Securities are denominated
or payable, the Corporation 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 1.6 to the affected Holders)
specifying the Conversion Date and the Specified Amount of each Component
Currency on the Conversion Date. In the event the Corporation determines in good
faith that any subsequent change in any Component Currency as set forth in the
definition of Specified Amount above has occurred, the Corporation will
similarly give written notice to the Trustee and the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying and acting
upon information received by it from the Corporation 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 Corporation or the Exchange Rate
Agent.
Section 3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, 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 Corporation will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Corporation will cause the Exchange Rate Agent to make
the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.1 for the purpose of determining the applicable
rate of exchange and, if applicable, for the
33
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 3.12.
(b) The Corporation shall have the right to remove and replace from time to
time the Exchange Rate Agent for any series of Securities. No resignation or
removal of the Exchange Rate Agent and no appointment of a successor Exchange
Rate Agent pursuant to this Section shall become effective until the acceptance
of appointment by the successor Exchange Rate Agent as evidenced by a written
instrument delivered to the Corporation 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
Corporation, 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 3.1, 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 Corporation on the same date and that are initially denominated and/or
payable in the same Currency).
ARTICLE 4.
SATISFACTION AND DISCHARGE
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Corporation Request cease to be of further
effect with respect to any series of Securities specified in such Corporation
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 10.5) and the Trustee, at the expense of the Corporation, 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 (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 Section 3.5, (ii) Securities and coupons of such series which
have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption Date,
whose surrender has been waived as provided in Section 11.6, 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 Corporation and thereafter repaid
to the Corporation, as provided in Section 10.3) have been delivered to
the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Corporation, 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 Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose an amount in the Currency in which the
Securities of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest, if any, to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
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(2) the Corporation has paid or caused to be paid all other sums payable
hereunder by the Corporation with respect to the Outstanding Securities of
such series, and
(3) the Corporation has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Corporation to the Trustee under Section 6.6, the obligations
of the Corporation to any Authenticating Agent under Section 6.11 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section and the obligations of the Trustee under Section 4.2
and the last paragraph of Section 10.3 shall survive.
Section 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
ARTICLE 5.
REMEDIES
Section 5.1 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is specifically deleted or modified in or pursuant to a
supplemental indenture, Board Resolution or Officers' Certificate establishing
the terms of such series pursuant to this Indenture:
(1) if the Corporation defaults in payment of the principal of or
premium, if any, on any Security of that series when the same becomes due
under any provision hereof or of such Security;
(2) if the Corporation defaults in payment of any interest due on any
Security of that series, or any related coupon or on any sinking fund
payment and any such default continues for a period of 30 days;
(3) if the Corporation breaches or violates any covenant or condition
herein contained (other than in relation to clauses (1) and (2) of
Section 5.1) which, after notice in writing has been given by the Trustee or
Holders of at least 25% in principal amount of all outstanding Securities of
any series affected thereby to the Corporation specifying such breach or
violation and requiring the Corporation to put an end to the same, the
Corporation fails to make good such breach or violation within a period of
60 days, unless the Trustee (having regard to the subject matter of the
breach or violation) shall have agreed to a longer period, and in such
event, within the period agreed to by the Trustee;
(4) if the Corporation or any Subsidiary:
(a) defaults in payment when due, including any applicable grace period,
or
(b) defaults in the performance or observance of any other covenant,
term, agreement or condition,
with respect to any Indebtedness, other than Non-Recourse Debt, in an
aggregate amount in excess of the greater of $75.0 million and 3% of
Consolidated Shareholders' Equity and, if such Indebtedness has not already
matured in accordance with its terms, such Indebtedness shall have been
accelerated so that the same shall be or become due and payable prior to the
date on which the same would otherwise have become due and payable, provided
that if such default is waived by the Persons entitled to do so, then the
Event of Default hereunder shall be deemed to be waived without further
action on the part of the Trustee or the Holders;
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(5) if a decree or order of a Court having jurisdiction is entered
adjudging the Corporation or any Material Subsidiary to be liable for the
payment of money in excess of the greater of $75.0 million and 3% of
Consolidated Shareholders' Equity, in the aggregate and such decree or order
remains unstayed or undischarged for a period of at least 60 days;
(6) if a decree or order of a Court having jurisdiction is entered
adjudging the Corporation or any Material Subsidiary bankrupt or insolvent
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Corporation
or any Material Subsidiary under the BANKRUPTCY AND INSOLVENCY ACT (Canada),
the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other bankruptcy,
insolvency or analogous laws, or appointing a receiver, liquidator, trustee,
sequestrator (or other similar official) of, or of all or substantially all
of the property of, the Corporation or any Material Subsidiary, or ordering
the winding up or liquidation of its affairs (except in the course of
carrying out or pursuant to a transaction in respect of which the conditions
in Section 8.1 are duly performed (other than Section 8.1(6) insofar as it
relates to this Section 8.1(6))) and any such decree or order continues
unstayed and in effect for a period of at least 60 days; or
(7) if a resolution is passed for the winding-up or liquidation of the
Corporation or a Material Subsidiary except in the course of carrying out or
pursuant to a transaction in respect of which the conditions of Article 8
are duly observed and performed and except in the ordinary course of
business of the Corporation or such Material Subsidiary, as the case may be,
or if the Corporation or any Material Subsidiary institutes proceedings to
be adjudicated a bankrupt or insolvent, or consents to the institution of
bankruptcy or insolvency proceedings against it under the BANKRUPTCY AND
INSOLVENCY ACT (Canada), the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada)
or any other bankruptcy, insolvency or analogous laws, or consents to the
filing of any such petition or to the appointment of a receiver, liquidator,
trustee, sequestrator (or other similar official) of, or of any substantial
part of the property of, the Corporation or any Material Subsidiary, other
than Non-Recourse Assets, or makes a general assignment for the benefit of
creditors, or admits in writing its inability to pay its debts generally as
they become due or takes corporate action in furtherance of any of the
aforesaid purposes.
In addition to the events set forth above, the Corporation may by indenture
supplemental hereto, executed and delivered pursuant to the provisions of
Article 9, create further Events of Default.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in Section 5.1 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 principal amount of
the Outstanding Securities of that affected series may, subject to subordination
provisions, if any, 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 such
affected series) of all of the Securities of that series and all interest
thereon to be due and payable immediately, by a notice in writing to the
Corporation (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 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 Corporation and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Corporation 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 3.1 for the
Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(4) and 3.12(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
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acceleration, and interest on such unpaid principal at the rate or rates
prescribed therefor in such Securities,
(C) to the extent 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 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Corporation covenants that if:
(1) default is made in the payment of any installment of interest on any
Security, or 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 Corporation 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, to the extent lawful, 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 amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Corporation 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 Corporation 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 Corporation 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 5.4 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 Corporation or any other obligor upon the
Securities or the property of the Corporation or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Corporation for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any), or such portion of the principal amount of any series of
Original Issue Discount Securities or Indexed Securities as may be specified
in the terms of such series, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
37
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
(ii) 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.6.
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 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities or
coupons may be prosecuted and enforced by the Trustee without the possession of
any of 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 5.6 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 applicable 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:
(i) FIRST: To the payment of all amounts due the Trustee under
Section 6.6;
(ii) 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
(iii) THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, the Securities of any series, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of all series affected by such Event of Default
(determined as provided in Section 5.2), 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 indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to
be incurred in compliance with, such request;
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(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 all series
affected by such Event of Default (determined as provided in Section 5.2);
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 Outstanding Securities of any such affected series, 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 Outstanding Securities of
all such affected series.
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
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 (including, if applicable, Article Fourteen) and in
such Security, of the principal of (and premium, if any) and (subject to
Section 3.7) interest, if any, on, such Security or payment of such Coupon on
the respective Stated Maturities expressed in such Security or Coupons (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 5.9 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 Corporation, 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 5.10 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 3.6, 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 5.11 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 5.12 CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of all series affected by an Event of Default (determined
as provided in Section 5.2 and as one class) shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Outstanding Securities of such affected series, provided in each
case
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
39
(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 Outstanding
Securities of such affected series not consenting.
Section 5.13 WAIVER OF PAST DEFAULTS.
Subject to Section 5.2, the Holders of not less than a majority in principal
amount of the Outstanding Securities of all affected series with respect to
which a Default shall have occurred and be continuing may on behalf of the
Holders of all the Outstanding Securities of such affected series waive any past
Default, 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 the payment of
Additional Amounts, 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 affected series.
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 5.14 WAIVER OF STAY OR EXTENSION LAWS.
The Corporation covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Corporation (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.
ARTICLE 6.
THE TRUSTEE
Section 6.1 NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default hereunder with respect to
the Securities of any series, the Trustee shall transmit in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, notice of such
default hereunder known to the Trustee, unless such Default shall have been
cured or waived; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest, if any, on any
Security of such series or in the payment of any sinking fund installment with
respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series and by related Coupons; and
PROVIDED FURTHER that in the case of any Default of the character specified in
Section 5.1(3) with respect to Securities of such series, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
Section 6.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of the Trust
Indenture Act:
(1) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any statutory declaration, 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;
40
(2) any request or direction of the Corporation mentioned herein shall
be sufficiently evidenced by a Corporation Request or Corporation Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related Coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity satisfactory to it 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
Corporation, 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) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(10) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed to
act hereunder; and
(11) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
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.
Section 6.3 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 Corporation, 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 the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and
41
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Corporation 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 Corporation of Securities or the proceeds thereof.
Section 6.4 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Corporation or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act,
may otherwise deal with the Corporation with the same rights it would have if it
were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
Section 6.5 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 Corporation.
Section 6.6 COMPENSATION AND REIMBURSEMENT.
The Corporation agrees:
(1) to pay to the Trustee from time to time reasonable compensation as
the parties shall 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), except any such expense,
disbursement or advance as may be attributable to its willful misconduct,
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability or expense including taxes (other than taxes based
upon the income of the Trustee) incurred without willful misconduct,
negligence or bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim (whether
asserted by the Corporation, any Holder or any Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The obligations of the Corporation under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such obligations
of the Corporation, 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 5.1(6) or (7), 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 bankruptcy, insolvency or other similar law.
"Trustee" for purposes of this Section 6.6 shall include any predecessor
Trustee but the willful misconduct, negligence or bad faith of any Trustee shall
not affect the rights of any other Trustee under this Section 6.6.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
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Section 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be eligible to
act as Trustee under Section 310(a)(1) of the Trust Indenture Act and shall have
a combined capital and surplus 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 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.9.
(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 Corporation. If the
instrument of acceptance by a successor Trustee required by Section 6.9 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee at the expense of the Corporation
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 Corporation. If the instrument of acceptance by a successor Trustee required
by Section 6.9 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the retiring Trustee, at the expense of
the Corporation, may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act after written request therefor by
the Corporation or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.7 and shall
fail to resign after written request therefor by the Corporation or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Corporation, by or pursuant to authority granted
by a Board Resolution, may remove the Trustee with respect to all Securities or
the Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of a Security of such
series 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 Corporation, by or pursuant to
authority granted by a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability, of
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
43
Securities of such series delivered to the Corporation 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
Corporation. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Corporation 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 Corporation 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 1.6.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 6.9 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 Corporation 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 Corporation 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 Corporation, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to all Securities,
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Corporation or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee, unless contemplated otherwise by such supplemental indenture, 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 1.1 which
contemplate such situation.
(c) Upon request of any such successor Trustee, the Corporation shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all rights, powers and trusts referred to
in paragraph (a) or (b) of this Section, as the case may be.
44
(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 6.10 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.
Section 6.11 APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of 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 1.6. 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 appointment 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 Corporation.
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 Corporation 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 all or substantially all of
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 and to the Corporation. 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 Corporation. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which
45
shall be acceptable to the Corporation and 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 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment 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 therein referred to
in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ---------------------------------------------
as Authenticating Agent
By ---------------------------------------------
as Authorized Signatory
ARTICLE 7.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 7.1 CORPORATION TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Corporation will furnish or cause to be furnished to the Trustee
(1) not more than 15 days after each Regular Record Date a list, in such form as
the Trustee may reasonably require, of the names and addresses of Holders as of
such Regular Record Date; PROVIDED, HOWEVER, that the Corporation 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 Corporation 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 Corporation 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 7.2 PRESERVATION OF LIST OF NAMES AND ADDRESSES OF HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
contained in the most recent list furnished to it as provided in Section 7.1
and as to the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar for the applicable series of Securities (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(c) Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
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Section 7.3 DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or Coupons, by receiving and holding the same,
agrees with the Corporation and the Trustee that none of the Corporation 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 Section 312 of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
Section 7.4 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 if required by Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of such report shall, at the time of such transmission to the
Holders, be filed by the Trustee with the Corporation (Attention: Executive
Vice-President and General Counsel), with each securities exchange upon which
any of the Securities are listed (if so listed) and also with the Commission.
The Corporation agrees to notify the Trustee when the Securities become listed
on any stock exchange.
Section 7.5 REPORTS BY THE CORPORATION.
The Corporation shall:
(1) file with the Trustee, within 15 days after the Corporation is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Corporation may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Corporation with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations;
(3) notwithstanding that the Corporation may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, 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
Corporation shall provide the Trustee:
(a) within 140 days after the end of each fiscal year, the information
required to be contained in annual reports on Form 20-F or 40-F as
applicable (or any successor form); and
(b) within 60 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 6K (or any successor form) which, regardless of applicable
requirements, shall, at a minimum, consist of such information required to
be provided in quarterly reports under the laws of Canada or any province
thereof to security holders of a corporation with securities listed on The
Toronto Stock Exchange, whether or not the Corporation has any of its
securities so listed.
Such information will be prepared in accordance with Canadian disclosure
requirements and Generally Accepted Accounting Principles;
(4) transmit to all Holders, in the manner and to the extent provided in
Section 313(c) of the Trust Indenture Act, within 15 days after the filing
thereof with the Trustee, such summaries of any information, documents and
reports required to be filed by the Corporation pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
47
(5) at all reasonable times, furnish to the Trustee or its agents or
attorneys such information relating to its business as the Trustee may
reasonably require.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 8.
CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 CORPORATION MAY AMALGAMATE OR CONSOLIDATE, ETC. ONLY ON CERTAIN
TERMS.
The Corporation shall not enter into any transaction whereby all or
substantially all of its undertaking, property and assets would become the
property of any other person (herein called a "Successor") whether by way of
reorganization, consolidation, amalgamation, arrangement, merger, transfer, sale
or otherwise, unless:
(1) the Successor expressly assumes all of the covenants and obligations
of the Corporation hereunder and the transaction otherwise meets the
requirements hereunder;
(2) the entity formed by or continuing from such consolidation or
amalgamation or into which the Corporation is merged or with which the
Corporation enters into such arrangement or the Person which acquires or
leases all or substantially all of the Corporation's properties and assets
is organized and existing under the laws of the United States, any state
thereof or the District of Columbia or the laws of Canada or any province
thereof;
(3) immediately before and after giving effect to such transaction, no
Event of Default hereunder, and no event which, after notice or lapse of
time or both, would become an Event of Default hereunder, shall have
happened and be continuing; and
(4) no condition or event shall exist as to the Corporation (at the time
of such transaction) or the Successor (immediately after such transaction)
and after giving full effect thereto or immediately after the Successor
shall become liable to pay the principal monies, premium, if any, interest
and other monies due or which may become due hereunder, which constitutes or
would constitute an Event of Default hereunder.
In addition to the above conditions, such transaction must to the
satisfaction of the Trustee, substantially preserve and not impair any rights
and powers of the Trustee or Holders.
Section 8.2 SUCCESSOR PERSON SUBSTITUTED.
Whenever the conditions of Section 8.1 hereof shall have been duly observed
and performed the Successor shall possess and from time to time may exercise
each and every right and power of the Corporation under this Indenture in the
name of the Corporation or otherwise and any act or proceeding by any provision
hereof required to be done or performed by any director or officer of the
Corporation may be done and performed with like force and effect by the like
directors or officers of the Successor, or Persons exercising comparable powers
in relation to the Successor.
Section 8.3 ASSIGNMENT OF RIGHTS.
Subject to Section 8.1, the Corporation will have the right at all times to
assign any of its rights or obligations under this Indenture to a Wholly-Owned
Subsidiary of the Corporation; PROVIDED, HOWEVER, that in the event of any such
assignment, the Corporation will remain fully and unconditionally liable for all
of its obligations hereunder and pursuant to the Securities by execution of an
indenture supplemental hereto, in form satisfactory to the Trustee. Subject to
the foregoing, this Indenture will be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.
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Section 8.4 SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation, amalgamation or statutory arrangement of the
Corporation with or merger of the Corporation into any other Person, or upon any
sale, conveyance, transfer or lease of all or substantially all of the
properties and assets of the Corporation to any other Person, any of the
property and assets of the Corporation would thereupon become subject to any
Security Interest, then unless such Security Interest could be created pursuant
to Section 10.12 without equally and ratably securing the Securities, the
Corporation prior to or simultaneously with such consolidation, amalgamation,
statutory arrangement, merger, conveyance, transfer or lease, will secure the
Outstanding Securities hereunder (together with, if the Corporation shall so
determine, any other Indebtedness of the Corporation 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,
sale, conveyance, transfer or lease is to become secured by such Security
Interest, or will cause such Securities to be so secured; PROVIDED that, for the
purpose of providing such equal and ratable security, the principal amount of
Original Issue Discount Securities and Indexed Securities shall mean that amount
which would at the time of making such effective provision be due and payable
pursuant to Section 5.2 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 9.
SUPPLEMENTAL INDENTURES
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Corporation, when authorized by or
pursuant to a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Corporation and
the assumption by any such successor of the covenants of the Corporation
contained herein and in the Securities; or
(2) to add to the covenants of the Corporation 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 Corporation; 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 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
(5) 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
(6) to secure the Securities pursuant to the requirements of
Section 8.4 or 10.12 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 3.1; 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
49
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 6.9(b); or
(9) to close this Indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture; PROVIDED such action
shall not adversely affect the interests of the Holders of Securities of any
series in any respect; 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 4.1, 14.2 and
14.3; PROVIDED that any such action shall not adversely affect the
contractual interests of the Holders of Securities of such series or any
other series and any related Coupons of Securities.
Section 9.2 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 any series affected by such supplemental
indenture, by Act of said Holders delivered to the Corporation and the Trustee,
the Corporation, 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) subject to Section 3.8, 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 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 5.2 or the amount thereof provable in bankruptcy pursuant to
Section 5.4, 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 3.1 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of such series required for any modification or amendment of this
Indenture, 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 15.4 for quorum or voting with respect to
Securities of such series, or
(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.13, except to increase any such percentage or to provide that
certain other provisions of this Indenture which affect such series cannot
be modified or waived without the consent of the Holder of each Outstanding
Security of such series.
In addition, any amendment to, or waiver of, the provisions of this
Indenture relating to subordination that adversely affects the rights of the
Holders of Securities will require the consent of Holders of at least 75% in
aggregate principal amount of such Securities then outstanding.
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 a 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.
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Section 9.3 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 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 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 Corporation shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Corporation, to any such supplemental indenture
may be prepared and executed by the Corporation and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
Section 9.7 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Corporation and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the
Corporation shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 1.6, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE 10.
COVENANTS
Section 10.1 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.
The Corporation 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 or cause to be paid the principal of (and premium, if any) and interest, if
any (including, in the case of a Default or an Event of Default, interest at the
rate specified therein on the amount in Default), 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 3.1 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 10.2 MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered Securities,
the Corporation will maintain or cause to be maintained 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
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surrendered for conversion or exchange, as applicable and where notices and
demands to or upon the Corporation in respect of the Securities of that series
and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Corporation
will maintain an office or agency outside the United States where any Bearer
Securities of that series and related coupons may be presented or surrendered
for payment, where Bearer Securities of that series may be, surrendered for
exchange, where Bearer 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 Corporation in respect of the Bearer
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; PROVIDED, HOWEVER, that, if the Bearer Securities of that series
are listed on any stock exchange located outside the United States and such
stock exchange shall so require, the Corporation will maintain a Paying Agent
for the Securities of that series in any required city located outside the
United States so long as the Bearer Securities of that series are listed on such
exchange.
The Corporation will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Corporation shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
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, and the Corporation hereby appoints the
same as its agent to receive such respective presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Corporation 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 Corporation's Paying Agent in The City of 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 Corporation in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Corporation 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 Corporation 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 Corporation 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 3.1 with
respect to a series of Securities, the Corporation hereby designates as a Place
of Payment for each series of Securities the Corporate Trust/Global Finance Unit
of the Trustee in New York, New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in the Borough of Manhattan, The City of
New York and as its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 3.1, 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 hereunder, then the Corporation will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent.
Section 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Corporation shall at any time act as its own Paying Agent with
respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency or Currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient
to pay the principal of (or premium, if any) or interest, if any, on
52
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 of its action or failure so to act.
Whenever the Corporation shall have one or more Paying Agents for any series
of Securities and any related coupons, it will, prior to 10:00 a.m. (local time
at the place of payment) 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 or Currencies 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 Corporation will promptly notify the Trustee of its
action or failure so to act.
The Corporation 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 notice of any default by the Corporation (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 Corporation may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were held by the
Corporation 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 Corporation, 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 Corporation, or the
Corporation (if any money is then held by the Corporation) 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 Corporation for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Corporation as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the written direction and at the
expense of the Corporation 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 Corporation.
Section 10.4 STATEMENT AS TO COMPLIANCE.
The Corporation will deliver to the Trustee, within 140 days after the end
of each fiscal year, a certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of whether the Corporation is in compliance with all conditions and
covenants under this Indenture and, if not in such compliance, specifying all
such known defaults. For purposes of this Section 10.4, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
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Section 10.5 ADDITIONAL AMOUNTS.
Unless pursuant to Section 3.1, all payments made by the Corporation under
or with respect to the Securities of any series will be made free and clear of
and without withholding or deduction for or on account of any present or future
tax, duty, levy, impost, assessment or other governmental charge (including
penalties, interest and other liabilities related thereto) imposed or levied by
or on behalf of the Government of Canada or of any province or territory thereof
or by any authority or agency therein or thereof having power to tax
(hereinafter "TAXES"), unless the Corporation is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. The Corporation
shall furnish to each Holder, within 30 days after the date of the payment of
any Taxes is due under applicable Canadian law, certified copies of tax receipts
or other applicable documents evidencing such payment. If the Corporation is so
required to withhold or deduct any amount for or on account of Taxes from any
payment made under or with respect to the Securities, the Corporation will pay
such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary so that the
net amount received by each Holder (including Additional Amounts) after such
withholding or deduction (and after deducting Taxes on such Additional Amounts)
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; PROVIDED that no Additional Amounts will be
payable:
(1) to any Person in respect of whom such taxes are required to be
withheld or deducted as a result of such Person not dealing at arm's length
with the Corporation (within the meaning of the INCOME TAX ACT (Canada));
(2) to any Person by reason of such Person being connected with Canada
(otherwise than merely by holding or ownership of any series of Securities
or receiving any payments or exercising any rights thereunder), including
without limitation a non-resident insurer who carries on an insurance
business in Canada and in a country other than Canada;
(3) for or on account of any tax, assessment or other governmental
charge which would not have been so imposed but for (i) the presentation by
the Holder of such Security or coupon for payment on a date more than
30 days after the date on which such payment became due and payable or the
date on which payment thereof is duly provided for, whichever occurs later
or (ii) 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, any such taxes, assessment or charge;
(4) for or on account of any estate, inheritance, gift, sales, transfer,
personal property tax or any similar tax, assessment or other governmental
charge;
(5) for or on account of any tax, assessment or other governmental
charge required to be withheld by any Paying Agent from any payment to a
Person in respect of any Security, if such payment can be made to such
Person without such withholding by at least one other Paying Agent the
identity of which is provided to such Person;
(6) for or on account of any tax, assessment or other governmental
charge which is payable otherwise than by withholding from a payment in
respect of such Security; or
(7) for any combination of items (1), (2), (3), (4), (5) and (6); nor
will Additional Amounts be paid with respect to any payment on a Security to
a Holder who is a fiduciary or partnership or other than the sole beneficial
owner of such payment to the extent such payment would be required by the
laws of Canada (or any political subdivision thereof) to be included in the
income for Canadian federal income tax purposes of a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a
beneficial owner who would not have been entitled to payment of the
additional amounts had such beneficiary, settlor, member or beneficial owner
been the Holder of such Security.
At least 10 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Corporation will be
obligated to pay Additional Amounts with respect to such payment, the
Corporation will deliver to the Trustee an Officers' Certificate stating the
fact that such Additional Amounts will be payable, 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.
54
The Corporation will furnish to the Holders of the Securities, within
30 days after the date the payment of any Taxes is due pursuant to applicable
law, certified copies of tax receipts or other documents evidencing such payment
by the Corporation.
Whenever in this Indenture there is mentioned, in any context, the payment
of principal (and premium, if any), Redemption Price, interest or any other
amount payable under or with respect to any Security such mention shall be
deemed to include mention of the payment of Additional Amounts provided for in
this Section to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made (if
applicable).
The obligations of the Corporation under this Section 10.5 shall survive the
termination of the Indenture.
Section 10.6 PAYMENT OF TAXES AND OTHER CLAIMS.
The Corporation will from time to time pay or discharge or cause to be paid
or discharged all taxes, rates, levies, assessments, ordinary or extraordinary,
government fees or dues lawfully levied, assessed or imposed upon or in respect
of its property or any part thereof or upon the income and profits of the
Corporation as and when the same become due and payable, and it will exhibit or
cause to be exhibited to the Trustee, when requested, the receipts and vouchers
establishing such payment and will duly observe and conform to all valid
requirements of any governmental authority relative to any of the property or
rights of the Corporation and all covenants, terms and conditions upon or under
which any such property or rights are held; provided, however, that the
Corporation shall have the right to contest by legal proceedings any such taxes,
rates, levies, assessments, government fees or dues, and upon such contest, may
delay or defer payment or discharge thereof.
Section 10.7 MAINTENANCE OF PROPERTIES.
The Corporation will cause all its properties to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Corporation may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any of such properties if such action is, in
the judgment of the Corporation desirable in the conduct of the business of the
Corporation.
Section 10.8 CORPORATE EXISTENCE.
Subject to Article Eight, the Corporation will at all times (i) maintain and
keep in full force and effect its corporate existence and the rights (charter
and statutory) and franchises of the Corporation and (ii) carry on and conduct
its businesses in a proper, efficient and business-like manner and in accordance
with good business practice; PROVIDED, HOWEVER, that the Corporation shall not
be required to preserve any such right or franchise if the Corporation shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Corporation and its Subsidiaries as a whole, as the case may
be.
Section 10.9 MAINTENANCE OF BOOKS AND RECORDS.
The Corporation shall keep or cause to be kept proper books of record and
account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Corporation in accordance with
Generally Accepted Accounting Principles.
Section 10.10 RESTRICTION OF SALES AND LEASEBACK TRANSACTIONS
The Corporation shall not, and shall not permit any Subsidiary to, enter
into any sale and leaseback transaction unless the Corporation and its
Subsidiaries comply with this restrictive covenant. A "sale and leaseback
transaction" is an arrangement between the Corporation or any Subsidiary and a
bank, insurance company or other lender or investor where the Corporation or any
Subsidiary lease real or personal property
55
which was or will be sold by the Corporation or any Subsidiary to that lender or
investor. The Corporation can comply with this Section 10.10 if either (i) the
sale and leaseback transaction is entered into prior to, concurrently with or
within 270 days after the acquisition, the completion of construction (including
any improvements on an existing property) or the commencement of commercial
operations of the property or (ii) the Corporation or its Subsidiaries could
otherwise grant a Security Interest on the property as permitted by the
provisions of Section 10.12 hereof.
Section 10.11 INSURANCE.
The Corporation shall have in full force and effect such policies of
insurance in such amounts issued by insurers of recognized standing covering the
properties and operations of the Corporation as are customarily held by similar
corporations engaged in the same or similar business in the localities where its
properties and operations are located.
Section 10.12 NEGATIVE PLEDGE.
So long as any Securities remain Outstanding, the Corporation and its
Subsidiaries will not create, assume or otherwise have Outstanding any Security
Interest, except for Permitted Encumbrances, on or over its or their respective
assets (present or future) in respect of any Indebtedness of any Person unless,
in the Opinion of Counsel to the Corporation or the Trustee, the obligations of
the Corporation in respect of all Securities then Outstanding shall be secured
equally and ratably therewith (either by the same instrument or by other
instrument).
Section 10.13 WAIVER OF CERTAIN COVENANTS.
The Corporation 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 8.4 or Sections 10.6 to 10.8,
Section 10.10 and Section 10.12, inclusive, or any covenants added to Article
Ten pursuant to Section 3.1 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 Corporation 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 11.
REDEMPTION OF SECURITIES
Section 11.1 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 3.1 for Securities of any
series) in accordance with this Article.
Section 11.2 ELECTION TO REDEEM NOTICE TO TRUSTEE.
The election of the Corporation to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Corporation, the Corporation shall, at least 60 days prior to the
Redemption Date fixed by the Corporation (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed 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 11.3. 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 Corporation shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
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Section 11.3 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 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot in such manner 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 3.1.
The Trustee shall promptly notify the Corporation and the Security Registrar
(if other than the Corporation) 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 11.4 NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 3.1, notice of
redemption shall be given in the manner provided for in Section 1.6 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 1.6 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.
Any notice that is mailed to the Holder of any Securities in the manner
provided in Section 1.6 shall be conclusively presumed to have been duly given,
whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 11.6, 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 11.6 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, 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 Corporation, the Trustee and any
Paying Agent is furnished, and
57
(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 3.5 or otherwise, the
last date, as determined by the Corporation, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the election of the
Corporation shall be given by the Corporation or, at the Corporation's request,
by the Trustee in the name and at the expense of the Corporation.
Section 11.5 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 a.m. (local time at place of payment) on any Redemption Date,
the Corporation shall deposit, with respect to the Securities being redeemed,
with the Trustee or with a Paying Agent (or, if the Corporation is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 10.3) an
amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.1 for the
Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(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.
Section 11.6 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 3.1 for the
Securities of such series and except, if applicable, as provided in
Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the Corporation
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 Corporation 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 10.2) and, unless otherwise specified as
contemplated by Section 3.1, 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 Regular
Record Date or Special Record Date, as the case may be, according to their terms
and the provisions of Section 3.7.
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 Corporation 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 10.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security,
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Section 11.7 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 Corporation or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Corporation and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Corporation shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
Section 11.8 TAX REDEMPTION.
If specified pursuant to Section 3.1, the Securities of a series will be
subject to redemption at any time, 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 Corporation 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 in the
applicable prospectus supplement, if any date is so specified, the Corporation
has or will become obligated to pay, on the next succeeding date on which
interest is due, Additional Amounts pursuant to Section 10.5 or (b) on or after
a date specified pursuant to Section 3.1, 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
Corporation, or any change, amendment, application or interpretation shall be
officially proposed, which, in any such case, in the Opinion of Counsel to the
Corporation, will result in the Corporation becoming obligated to pay, on the
next succeeding date on which interest is due, Additional Amounts with respect
to any Security of such series and (2) in any such case, the Corporation in its
business judgment determines that such obligation cannot be avoided by the use
of reasonable measures available to the Corporation; 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 Corporation 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 12.
SINKING FUNDS
Section 12.1 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 3.1 for Securities of any series) in
accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 12.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 12.3, 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
Corporation may at its option (1) deliver to the Trustee
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Outstanding Securities of a series (other than any previously called for
redemption) theretofore purchased or otherwise acquired by the Corporation
together in the case of 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 Corporation for Securities of such series which have been redeemed either
at the election of the Corporation 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 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any series
of Securities, the Corporation will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and the portion thereof, if
any, which is to be satisfied by delivering or crediting Securities of that
series pursuant to Section 12.2 (which Securities will, if not previously
delivered, accompany such certificate) and whether the Corporation 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 Corporation 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 Corporation 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, with respect to such payment date, the
option to deliver or credit Securities as provided in Section 12.2 and without
the right to make any optional sinking fund payment, if any, with respect to
such series.
Not more than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 11.3 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Corporation in the
manner provided in Section 11.4. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
Prior to any sinking fund payment date, the Corporation shall pay to the
Trustee or a Paying Agent (or, if the Corporation is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) 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 12.3.
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
Corporation, 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 Corporation, 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
Corporation) not in excess of the principal amount thereof.
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ARTICLE 13.
REPAYMENT AT OPTION OF HOLDERS
Section 13.1 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 3.1
for Securities of any series) in accordance with this Article.
Section 13.2 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 Corporation covenants that
on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Corporation is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of money in
the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 3.1 for the Securities of such series
and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(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 13.3 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 Corporation at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places or which the Corporation 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
Corporation.
Section 13.4 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 Corporation on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Corporation 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, the principal amount of such
Security so to be repaid shall be paid by the Corporation, 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 10.2) and, unless otherwise specified pursuant to Section 3.1, only
upon presentation and surrender of such coupons; and PROVIDED
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FURTHER that, in the case of Registered Securities, installments of interest, if
any, whose Stated Maturity is on or prior to the Repayment Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 3.7.
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.
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 13.2 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 Corporation
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 10.2) and, unless otherwise specified
as contemplated by Section 3.1, only upon presentation and surrender of those
coupons.
Section 13.5 SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in part
only, the Corporation shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Corporation, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE 14.
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.1 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, the provisions of this Article Fourteen shall apply to each
series of Securities, and the Corporation may, at its option, effect defeasance
of the Securities of or within a series under Section 14.2, or covenant
defeasance of or within a series under Section 14.3 in accordance with the terms
of such Securities and in accordance with this Article.
Section 14.2 DEFEASANCE AND DISCHARGE.
Upon the exercise by the Corporation of the above option applicable to this
Section with respect to any Securities of or within a series, the Corporation
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities on the date the conditions set forth in
Section 14.4 are satisfied (hereinafter, "DEFEASANCE"). For this purpose, such
defeasance means that the Corporation shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 14.5 and the other Sections of this Indenture referred to in (A) and
(B) below, and to have satisfied all of its other obligations under such
Securities, and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Corporation, 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 to receive, solely from the trust fund described in
Section 14.4 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
when such payments are due, (B) the Corporation's obligations with respect to
such Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3 and 10.5, (C) the
rights, powers, trusts, duties and immunities of the Trustee
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hereunder and (D) this Article Fourteen. Subject to compliance with this Article
Fourteen, the Corporation may exercise its option under this Section 14.2
notwithstanding the prior exercise of the option under Section 14.3 with respect
to such Securities and any related Coupons.
Section 14.3 COVENANT DEFEASANCE.
Upon the exercise by the Corporation of the above option applicable to this
Section with respect to any Securities of or within a series, the Corporation
shall be released from its obligations under Section 8.4 and Sections 10.6
through 10.8, 10.10 and 10.12, and, if specified pursuant to Section 3.1, their
obligations under any other covenant, with respect to such Outstanding
Securities on and after the date the conditions set forth in Section 14.4 are
satisfied (hereinafter, "COVENANT DEFEASANCE"), and such Securities 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 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, the Corporation 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 5.1(3) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby.
Section 14.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either Section 14.2
or Section 14.3 to any Outstanding Securities of or within a series:
(1) The Corporation shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.7 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, (A) an amount (in
such Currency in which such Securities 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, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
chartered accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (1) the
principal of (and premium, if any) and interest, if any, on such Outstanding
Securities 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 on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities; 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. Before such a deposit, the
Corporation may give to the Trustee, in accordance with Section 11.2 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) In the case of an election under Section 14.2, the Corporation shall
have delivered to the Trustee an Opinion of Counsel of recognized standing
in the United States stating that (i) the Corporation has received from, or
there has been published by, the Internal Revenue Service a ruling, or
(ii) 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 will not recognize income, gain or loss for
U.S. federal income tax purposes as a
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result of such defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(3) In the case of an election under Section 14.3, the Corporation shall
have delivered to the Trustee an Opinion of Counsel of recognized standing
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.
(4) Either the Corporation has delivered to the Trustee an Opinion of
Counsel of recognized standing in Canada or a ruling from Canada Customs and
Revenue Agency to the effect that the Holders of such Outstanding Securities
will not recognize income, gain or loss for Canadian federal, provincial or
territorial income tax or other tax purposes 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).
(5) The Corporation is not an "insolvent person" within the meaning of
the BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of such deposit or at
any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(6) No Event of Default or Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (6) and (7) of Section 5.1 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).
(7) The Corporation 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.
(8) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Corporation is a party or by
which it is bound.
(9) 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 3.1.
(10) The Corporation shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 14.2
or the covenant defeasance under Section 14.3 (as the case may be) have been
complied with.
Section 14.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 10.3, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.1) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 14.5, the
"TRUSTEE") pursuant to Section 14.4 in respect of such Outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Corporation acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal
(and premium, 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 3.1, if, after a deposit referred to in Section 14.4(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 3.12(b) or the terms of such
Security to receive payment in a
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Currency other than that in which the deposit pursuant to Section 14.4(1) has
been made in respect of such Security, or (b) a Conversion Event occurs as
contemplated in Section 3.12(0) or 3.12(e) or by the terms of any Security in
respect of which the deposit pursuant to Section 14.4(1) has been made, the
indebtedness represented by such Security shall be deemed to have been, and will
be, fully discharged and satisfied through the payment of the principal of (and
premium, if any) and interest, if any, on such Security as they become due out
of the proceeds yielded by converting (from time to time as specified below in
the case of any such election) the amount or other property deposited in respect
of such Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the third Business Day prior to
each payment date, except, with respect to a Conversion Event, for such Currency
in effect (as nearly as feasible) at the time of the Conversion Event.
The Corporation shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 14.4 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.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Corporation from time to time upon a
Corporation Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 14.4 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance, as applicable, in
accordance with this Article.
Section 14.6 REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 14.5 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the obligations of the Corporation under this Indenture and
such Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 14.2 or 14.3, 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 14.5; PROVIDED, HOWEVER, that if the Corporation makes
any payment of principal of (or premium, if any) or interest, if any, on any
such Security following the reinstatement of its obligations, the Corporation
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 15.
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called at any time
and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 15.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 15.1, to be held at such time
and at such place in The City of New York or, if Securities of such series have
been issued in whole or in part as Bearer Securities, in London, England or in
such place outside the United States as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the time and
the place of such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided for in Section 1.6, not
less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Corporation, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Securities of
any series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 15.1, 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
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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 Corporation or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in The City of New York or, if Securities of such series are to be
issued as Bearer Securities, in London, England (or in such place outside the
United States as the Trustee shall determine) for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in paragraph (a)
of this Section.
Section 15.3 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 or 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 Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Corporation and its
counsel.
Section 15.4 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 15.2(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.
Except as limited by the proviso to Section 9.2 and the second paragraph of
Section 9.2, 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; PROVIDED, HOWEVER, that, except as
limited by the proviso to Section 9.2, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not such Holders were present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 15.4, 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
66
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
Section 15.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make
such reasonable regulations as it may deem advisable for any meeting of Holders
of Securities of a series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 1.4 and the
appointment of any proxy shall be proved in the manner specified in Section 1.4
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company or bank authorized by Section 1.4 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 1.4 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
Corporation or by Holders of Securities as provided in Section 15.2(b), in which
case the Corporation 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 1.1); PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 15.2 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 15.6 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 of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 15.2 and, if
applicable, Section 15.4. 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 Corporation, 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.
* * * * *
67
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
TRANSALTA CORPORATION,
as Issuer
By: --------------------------------------------
Name:
Title:
By: --------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: --------------------------------------------
Name:
Title:
68
EXHIBIT A
FORM OF SECURITY
*[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CORPORATION
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
TRANSALTA CORPORATION
____% [Debenture] [Note] [due] [Due] ____________
No. ____________ $____________
CUSIP:
TransAlta Corporation, a corporation duly organized and existing under the
laws of Canada (herein called the "Corporation", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to [Cede & Co.]*, or registered assigns, the
principal sum of *$______ (_______________ DOLLARS) on [date and year], at the
office or agency of the Corporation referred to below, and to pay interest
thereon on [date and year] and semi-annually thereafter, on [date] and [date] in
each year, commencing [date and year],** or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, at the rate
of ____% per annum, until the principal hereof is paid or duly provided for, and
(to the extent lawful) to pay on demand interest on any overdue interest at the
rate borne by the Securities from the date on which such overdue interest
becomes payable to the date payment of such interest has been made or duly
provided for. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the [date] or [date] (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and such defaulted interest, and (to
the extent lawful) interest on such defaulted interest at the rate borne by the
Securities, may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such, exchange, all as more fully provided in said Indenture.
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
------------------------
* Include if Securities are to be issued in global form. At the time of this
writing, DTC will not accept global securities with an aggregate principal
amount in excess of U.S.$500,000,000. If the aggregate principal amount of
your offering exceeds this amount, use more than one global security.
** Insert date from which interest is to accrue or, if the Securities are to be
sold "flat", the closing date of the offering.
A-1
Unless the certificate of authentication hereon has been duly executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this instrument to be duly
executed.
Dated:
TRANSALTA CORPORATION
By:
--------------------------------------------
By:
--------------------------------------------
A-2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in, and issued under, the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: --------------------------------------------
Authorized Signatory
A-3
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Corporation designated as its ______% [Debentures] [Notes] [due] [Due]
____________ (herein called the "Securities"), limited (except as otherwise
provided in the Indenture referred to below) in aggregate principal amount to
$[____ ,000,000], which may be issued under an indenture (herein called the
"Indenture") dated as of ____________ ___ , 2002 among the Corporation and The
Bank of New York, as trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Corporation, the Trustee and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. [This Security is a global Security representing $[____ , ____ ,000]
aggregate principal amount [at maturity]* of the Securities.]**
Payment of the principal of (and premium, if any, on) and interest on this
Security will be made at the office or agency of the Corporation maintained for
that purpose in New York, New York or at such other office or agency of the
Corporation as may be maintained for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; PROVIDED, HOWEVER, that payment of the
principal (and premium, if any) and interest may be made at the option of the
Corporation (i) by check mailed to the address of the Person entitled thereto as
such address shall appear on the Security Register or (ii) by wire transfer to
an account maintained by the payee located in the United States; PROVIDED, that
principal paid in relation to any Security, redeemed at the option of the
Corporation or upon Maturity, shall be paid to the holder of such Security only
upon presentation and surrender of such Security to such office of agency
referred to above.
[The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice, at any time after [date and year], as a whole or in part,
at the election of the Corporation[, at a Redemption Price equal to the
percentage of the principal amount set forth below if redeemed during the
12-month period beginning [date], of the years indicated:
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
--------------------- --------------------- --------------------- ---------------------
% %
% %
% %
and thereafter] at 100% of the principal amount, together in the case of any
such redemption with accrued interest, if any, to the Redemption Date, all as
provided in the Indenture.]
------------------------
* Include if a discount security.
** Include in a global security.
A-4
[The Securities are also subject to redemption on [date] in each year
commencing in [year] through the operation of a sinking fund, at a Redemption
Price equal to 100% of the principal amount, together with accrued interest to
the Redemption Date; all as provided in the Indenture. The sinking fund provides
for the [mandatory] redemption on [date] in each year beginning with the year
[year] of $______ aggregate principal amount of Securities. [In addition, the
Corporation may, at its option, elect to redeem up to an additional $______
aggregate principal amount of Securities on any such date.] Securities acquired
or redeemed by the Corporation (other than through operation of the sinking
fund) may be credited against subsequent [mandatory] sinking fund payments.]*
[The Securities are subject to repayment at the option of the Holders
thereof on [Repayment Date(s)] at a Repayment Price equal to ______% of the
principal amount, together with accrued interest to the Repayment Date, all as
provided in the Indenture. To be repaid at the option of the Holder, this
Security, with the "Option to Elect Repayment" form duly completed by the Holder
hereof (or the Holder's attorney duly authorized in writing), must be received
by the Corporation at its office or agency maintained for that purpose in
New York, New York not earlier than 45 days nor later than 30 days prior to the
Repayment Date. Exercise of such option by the Holder of this Security shall be
irrevocable unless waived by the Corporation.]**
In the case of any redemption [repayment] of Securities, interest
installments whose Stated Maturity is on or prior to the Redemption Date
[Repayment Date] will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof. Securities (or portions thereof) for
whose redemption [repayment] provision is made in accordance with the Indenture
shall cease to bear interest from and after the Redemption Date [Repayment
Date].
In the event of redemption [repayment] of this Security in part only, a new
Security or Securities for the unredeemed [unpaid] portion hereof shall be
issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Corporation on this Security and (b) certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Corporation, with certain conditions set forth therein, which
provisions apply to this Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders under the Indenture at any time by the
Corporation and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of all affected Securities at the time Outstanding.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities affected thereby, to
waive compliance by the Corporation with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by or on behalf of the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Corporation, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
------------------------
* Include if the Securities are subject to a sinking fund.
** Include if the Securities are subject to repayment at the option of the
Holders.
A-5
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable on the Security Register of
the Corporation, upon surrender of this Security for registration of transfer at
the office or agency of the Corporation maintained for such purpose in
New York, New York duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Securities, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Securities
are exchangeable for a like aggregate principal amount of Securities of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Corporation may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration of
transfer, the Corporation, the Trustee and any agent of the Corporation or the
Trustees may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Corporation, the Trustee nor any agent shall be affected by notice
to the contrary.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months. For the purposes only of disclosure required by the
INTEREST ACT (Canada), and without affecting the amount of interest payable to
any Holder or the calculation of interest on any Securities, whenever interest
to be paid under a Security is to be calculated on the basis of a year of
360 days consisting of twelve 30-day months, the yearly rate of interest to
which the rate determined pursuant to such calculation is equivalent during any
particular period is the rate so determined multiplied by a fraction of which:
(a) the numerator is the product of:
(i) the actual number of days in the calendar year in which the same
is to be ascertained, and
(ii) the sum of (A) the product of (x) 30 and (y) the number of
complete months elapsed in the relevant period and (B) the number of days
elapsed in any incomplete month in the relevant period, and
(b) the denominator is the product of (i) 360 and (ii) the number of
days in the relevant period.
* [If at any time, (i) the Depositary notifies the Corporation that it
is unwilling or unable or no longer qualifies to continue as Depositary or
if at any time the Depositary shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation and a successor depositary is not appointed
by the Corporation within 90 days after the Corporation receives such notice
or becomes aware of such condition, as the case may be, (ii) the Corporation
determines that the Securities shall no longer be represented by a global
Security or Securities, or (iii) any Event of Default shall have occurred
then in such event the Corporation will execute and the Trustee will
authenticate and deliver Securities in definitive registered form, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of this Security in exchange for this Security. Such
Securities in definitive registered form shall be registered in such names
and issued in such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.]
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
------------------------
* Include for global security.
A-6
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Corporation to
repay the within Security [(or the portion thereof specified below)], pursuant
to its terms, on the "Repayment Date" first occurring after the date of receipt
of the within Security as specified below, at a Repayment Price equal to ____%
of the principal amount thereof, together with accrued interest to the Repayment
Date, to the undersigned at:
(Please Print or Type Name and Address of the Undersigned.)
For this Option to Elect Repayment to be effective, this Security with the
Option to Elect Repayment duly completed must be received not earlier than
45 days prior to the Repayment Date and not later than 30 days prior to the
Repayment Date by the Corporation at its office or agency in [the Borough of
Manhattan, New York, New York].
If less than the entire principal amount of the within Security is to be
repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $____________.
If less than the entire principal amount of the within Security is to be
repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000): $____________.
Dated:
Note: The signature to this Option to Elect
Repayment must correspond with the name as written
upon the face of the within Security in every
particular without alterations or enlargement or
any change whatsoever.]
A-7
ASSIGNMENT FORM*
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________
(INSERT ASSIGNEE'S SOC. SEC., SOC. INS. OR TAX ID NO.)
(Print or type assignee's name, address and zip or postal code)
and irrevocably appoint __________________________________________________ agent
to transfer this Security on the books of the Corporation. The agent may
substitute another to act for him.
Dated: Your Signature: _________________________________________________________
(Sign exactly as name appears on the other side of this
Security)
Signature Guarantee: _____________________________
(Signature must be guaranteed by a
commercial bank or trust company, by a
member or members' organization of The
New York Stock Exchange or by another
eligible guarantor institution as
defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934)
------------------------
* Omit if a global security.
A-8
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-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
[Insert title or 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 TransAlta Coproration 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 telex on or prior to the date on
which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applied 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
B-1-1
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:
[To be dated no earlier than the 15th day
prior to (i) the Exchange Date or (ii) the
relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
------------------------------------------------
(Authorized Signatory)
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
[Insert title or 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
TransAlta Corporation 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 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
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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:
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear
System]
[Clearstream]
By:
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