EXHIBIT 7.1
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NOVA CHEMICALS CORPORATION
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
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INDENTURE
Dated as of January 13, 2004
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CROSS-REFERENCE TABLE
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of January 13, 2004
TIA Indenture
Section Section
ss. 310 (a)(1)..................................................608
(a)(2)..................................................608
(a)(3)..................................................613
(b).....................................................609
ss. 312 (a).....................................................701
(b).....................................................701
(c).....................................................701
ss. 313 (a).....................................................702
(b).....................................................702
(c)................................................702, 703
ss. 314 (a)(1)-(3)..............................................703
(a)(4).................................................1004
(c)(1)..................................................102
(c)(2)..................................................102
(e).....................................................102
ss. 315 (b).....................................................602
ss. 316 (a)(last sentence)......................101 ("Outstanding")
(a)(1)(A)..........................................502, 512
(a)(1)(B)...............................................513
(b).....................................................508
(c).....................................................104
ss. 317 (a)(1)..................................................503
(a)(2)..................................................504
(b)....................................................1003
ss. 318 (a).....................................................112
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the
Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions...................................................1
SECTION 102. Compliance Certificates and Opinions.........................13
SECTION 103. Form of Documents Delivered to Trustee.......................13
SECTION 104. Acts of Holders..............................................14
SECTION 105. Notices, Etc. to Trustee and Company.........................15
SECTION 106. Notice to Holders; Waiver....................................15
SECTION 107. Effect of Headings and Table of Contents.....................16
SECTION 108. Successors and Assigns.......................................16
SECTION 109. Separability Clause..........................................16
SECTION 110. Benefits of Indenture........................................16
SECTION 111. Governing Law................................................16
SECTION 112. Conflict with Trust Indenture Act............................16
SECTION 113. Legal Holidays...............................................16
SECTION 114. Conversion of Currency.......................................17
SECTION 115. Appointment of Agent for Service.............................18
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally..............................................19
SECTION 202. Form of Trustee's Certificate of Authentication..............19
SECTION 203. Securities Issuable in Global Form...........................20
SECTION 204. Book-Entry Provisions for Global Securities..................21
SECTION 205. Special Transfer Provisions..................................22
SECTION 206. CUSIP Number.................................................23
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.........................24
SECTION 302. Denominations................................................27
SECTION 303. Execution, Authentication, Delivery and Dating...............27
SECTION 304. Temporary Securities.........................................28
SECTION 305. Registration, Registration of Transfer and Exchange..........29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.............30
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset...............................................31
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SECTION 308. Optional Extension of Maturity...............................33
SECTION 309. Persons Deemed Owners........................................34
SECTION 310. Cancellation.................................................34
SECTION 311. Computation of Interest......................................35
SECTION 312. Currency and Manner of Payments in Respect of Securities.....35
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent........................................................38
SECTION 314. Registrar and Paying Agent...................................39
SECTION 315. Paying Agent To Hold Money in Trust..........................39
SECTION 316. Noteholder Lists.............................................39
SECTION 317. Transfer and Exchange........................................40
SECTION 318. Outstanding Securities.......................................40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture......................41
SECTION 402. Application of Trust Money...................................42
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................42
SECTION 502. Acceleration of Maturity; Rescission and Annulment...........43
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee......................................................45
SECTION 504. Trustee May File Proofs of Claim.............................45
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities...................................................46
SECTION 506. Application of Money Collected...............................46
SECTION 507. Limitation on Suits..........................................46
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................47
SECTION 509. Restoration of Rights and Remedies...........................48
SECTION 510. Rights and Remedies Cumulative...............................48
SECTION 511. Delay or Omission Not Waiver.................................48
SECTION 512. Control by Holders...........................................48
SECTION 513. Waiver of Past Defaults......................................49
SECTION 514. Undertaking for Costs........................................49
SECTION 515. Waiver of Stay or Extension Laws.............................49
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..........................50
SECTION 602. Notice of Defaults...........................................51
SECTION 603. Certain Rights of Trustee....................................51
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Page
SECTION 604. Trustee Not Responsible for Recitals or Issuance of
Securities...................................................52
SECTION 605. May Hold Securities..........................................52
SECTION 606. Money Held in Trust..........................................52
SECTION 607. Compensation and Reimbursement...............................53
SECTION 608. Corporate Trustee Required; Eligibility; Conflicting
Interests....................................................53
SECTION 609. Resignation and Removal; Appointment of Successor............53
SECTION 610. Acceptance of Appointment by Successor.......................55
SECTION 611. Merger, Conversion, Consolidation or Succession to
Business.....................................................56
SECTION 612. Appointment of Authenticating Agent..........................56
SECTION 613. Co-Trustee...................................................58
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................59
SECTION 702. Reports by Trustee...........................................59
SECTION 703. Reports by Company...........................................59
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.........60
SECTION 802. Successor Person Substituted.................................61
SECTION 803. Securities To Be Secured in Certain Events...................61
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...........61
SECTION 902. Supplemental Indentures with Consent of Holders..............63
SECTION 903. Execution of Supplemental Indentures.........................64
SECTION 904. Effect of Supplemental Indentures............................64
SECTION 905. Conformity with Trust Indenture Act..........................64
SECTION 906. Reference in Securities to Supplemental Indentures...........64
SECTION 907. Notice of Supplemental Indentures............................64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest..........64
SECTION 1002. Maintenance of Office or Agency..............................65
SECTION 1003. Money for Securities Payments to Be Held in Trust............65
SECTION 1004. Statement as to Compliance...................................66
SECTION 1005. Corporate Existence..........................................66
SECTION 1006. Negative Pledge..............................................67
SECTION 1007. Limitation on Sale/Leaseback Transactions....................69
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SECTION 1008. Waiver of Certain Covenants..................................69
SECTION 1009. Tax Gross-Up Amounts.........................................70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.....................................71
SECTION 1102. Election to Redeem; Notice to Trustee........................71
SECTION 1103. Selection by Trustee of Securities To Be Redeemed............72
SECTION 1104. Notice of Redemption.........................................72
SECTION 1105. Deposit of Redemption Price..................................73
SECTION 1106. Securities Payable on Redemption Date........................73
SECTION 1107. Securities Redeemed in Part..................................73
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.....................................74
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities........74
SECTION 1203. Redemption of Securities for Sinking Fund....................74
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. Applicability of Article.....................................75
SECTION 1302. Repayment of Securities......................................75
SECTION 1303. Exercise of Option...........................................76
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable......................................................76
SECTION 1305. Securities Repaid in Part....................................77
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Company's Option to Effect Defeasance or Covenant
Defeasance...................................................77
SECTION 1402. Defeasance and Discharge.....................................77
SECTION 1403. Covenant Defeasance..........................................77
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..............78
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions........................80
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1501. Exemption from Individual Liability..........................81
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EXHIBITS
Exhibit A Form of Initial Security
Exhibit B Form of Private Placement Legend
Exhibit C Form of Regulation S Legend
Exhibit D Form of Global Security Legend
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INDENTURE, dated as of January 13, 2004, between NOVA Chemicals
Corporation, a corporation duly organized and subsisting under the laws of the
Province of Alberta, Canada (herein called the "COMPANY"), having its principal
executive offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
U.S. Bank National Association, a national banking association duly organized
and existing under the laws of the United States, as Trustee (herein called the
"TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), to be issued in one or more series as in this Indenture provided.
The Company is issuing $400,000,000 aggregate principal amount of its 6 1/2%
Senior Notes due 2012 (the "INITIAL SECURITIES") hereunder concurrently with its
execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to
the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, 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 ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with 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.
Certain terms, used principally in Articles Three, Six and Fourteen are
defined in those Articles.
"ACT", when used with respect to any Holder, has the meaning specified in
Section 104(a).
"ADDITIONAL INTEREST" has the meaning set forth in the Registration Rights
Agreement.
"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.
"AGENT MEMBERS" has the meaning specified in Section 204(b).
"ATTRIBUTABLE DEBT" in respect of a Sale/Leaseback Transaction means, as at
the time of determination, the present value (discounted at the interest rate
set forth or implicit in the terms of such transaction or, if not practicable to
determine such rate, the weighted average interest rate per annum borne by the
Securities of each series outstanding pursuant to this Indenture, compounded
semi-annually, in either case as determined by the principal accounting or
financial officer of the Company) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended or may, at the option of the lessor, be extended).
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to act on
behalf of the Trustee to authenticate Securities.
"AUTHORIZED NEWSPAPER" means a newspaper, 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.
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"BOARD OF DIRECTORS" means either the board of directors of the Company or
any duly authorized committee of that board or any designated officers of the
Company acting pursuant to authority granted by the board of directors of the
Company or any committee of such board.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company 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.
"BRANCH REGISTER" has the meaning specified in Section 305.
"BRANCH SECURITY REGISTRAR" has the meaning specified in Section 305.
"BUSINESS DAY", when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, 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 or executive order to close.
"CAPITAL STOCK" of any person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, including any preferred
stock, but excluding any debt securities convertible into such equity.
"CENTRAL REGISTER" has the meaning specified in Section 305.
"CENTRAL SECURITY REGISTRAR" has the meaning specified in Section 305.
"CLEARSTREAM" has the meaning specified in Section 204(a).
"COMMISSION" means the 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.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by any two of its Chairman, its Chief
Executive Officer, its President, any Senior Vice President, any Vice President,
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary
and delivered to the Trustee.
"COMPONENT CURRENCY" has the meaning specified in Section 312(h).
"CONSOLIDATED NET TANGIBLE ASSETS" means, as of any particular time, the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after
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deducting therefrom: (a) all current liabilities except for (1) notes and loans
payable, (2) current maturities of long-term debt and (3) current maturities of
obligations under capital leases; and (b) to the extent included in said
aggregate amount of assets, all goodwill, trade names, trademarks, patents,
organization expenses, unamortized debt discount and expenses and all other
intangible assets, to the extent included in said aggregate amount of assets,
all as set forth on the most recent consolidated balance sheet of the Company
and computed in accordance with generally accepted accounting principles.
"CONSOLIDATED SHAREHOLDERS' EQUITY" means, at any date, the aggregate of
the dollar amount of the outstanding preferred and common share capital of the
Company, plus any outstanding warrants exercisable into shares, plus any
outstanding debentures or other Debt which are convertible into shares at the
option of the Company and which have no significant retraction privilege, plus
or minus the amount, without duplication, of any reinvested earnings or deficit,
plus any contributed surplus, plus or minus any cumulative translation
adjustment, all as set forth in the most recent audited year-end consolidated
balance sheet of the Company.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such Currency and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions or (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 ▇▇▇▇▇▇▇ Square, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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, limited
liability companies and business trusts.
"COVENANT DEFEASANCE" has the meaning specified in Section 1403.
"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.
"DEBT" means notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
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"DEPOSITARY" means The Depository Trust Company, its nominees and their
respective successors.
"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 312(g).
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning specified in
Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(h).
"EUROCLEAR" has the meaning specified in Section 204(a).
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within any
series, unless otherwise specified with respect to any Securities pursuant to
Section 301, a
New York Clearing House bank, designated pursuant to Section 301
or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex or a certificate
setting forth (i) the applicable Market Exchange Rate and (ii) the Dollar or
Foreign Currency amounts of principal (and premium, if any) and interest, if any
(on an aggregate basis and on the basis of a Security having the lowest
denomination principal amount determined in accordance with Section 302 in the
relevant Currency), payable with respect to a Security of any series on the
basis of such Market Exchange Rate, sent (in the case of a telex) or signed (in
the case of a certificate) by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
"EXCHANGE SECURITIES" has the meaning provided in the Registration Rights
Agreement.
"EXCLUDED HOLDER" has the meaning specified in Section 1009.
"EXTENSION NOTICE" has the meaning specified in Section 308.
"EXTENSION PERIOD" has the meaning specified in Section 308.
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"FINAL MATURITY" has the meaning specified in Section 308.
"FOREIGN CURRENCY" means any Currency other than Currency of the United
States.
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"GLOBAL SECURITY" has the meaning specified in Section 203.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, securities which are (i)
direct obligations of the government which issued the Currency in which the
Securities of a particular series are payable or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
PROVIDED, HOWEVER, 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 the Person in whose name a Security is registered in the
Security Register.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of particular series of Securities established as contemplated
by Section 301; PROVIDED, HOWEVER, that, if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean, with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INITIAL PURCHASERS" means Citigroup Global Markets Inc., Banc One Capital
Markets, Inc., CIBC World Markets Corp., RBC Dominion Securities Corporation,
Scotia Capital (USA) Inc. and TD Securities (USA) Inc.
"INITIAL SECURITIES" has the meaning specified in the first paragraph of
this Indenture.
"INTEREST," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity at the rate prescribed in such Original Issue Discount Security.
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"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"ISSUE DATE" means January 13, 2004.
"MANDATORY SINKING FUND PAYMENT" has the meaning specified in Section 1201.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, (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
301 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 or any other principal market for Dollars or
such purchased Foreign Currency, in each case determined by the Exchange Rate
Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 301, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii) the Exchange Rate
Agent or, with respect to calculations made by the Company, the Company 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
New York City, London or other
principal market for such Currency in question, or such other quotations as
the Exchange Rate Agent or the Company, respectively, shall deem appropriate.
Unless otherwise specified by the Exchange Rate Agent or, with respect to
calculations made by the Company, the Company, 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 nonresident issuer of securities designated in such Currency
would purchase such Currency in order to make payments in respect of such
securities.
"MATURITY," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"NECESSARY ASSETS" means all assets, including, without limitation land,
buildings, manufacturing facilities, equipment, control systems, easements and
rights of way, permits and other regulatory approvals, pipelines, utilities,
pumping and storage facilities, roads, computers and computer software,
technology and all other forms of intellectual property, feedstock supply
agreements, and product sale agreements of any kind (including purchase of
feedstock) used or useful in the ownership, operation or maintenance of the
property acquired, constructed or improved, whether or not in existence prior to
such acquisition, construction or improvement.
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"NON-U.S. PERSON" means a Person who is not a U.S. person, as defined in
Regulation S.
"NOTICE OF DEFAULT" has the meaning specified in Section 501.
"OFFICERS' CERTIFICATE" means a certificate signed by any two of the
Chairman, the Chief Executive Officer, the President, a Senior Vice President or
a Vice President, or by any one of the foregoing together with the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
"OPTIONAL RESET DATE" has the meaning specified in Section 307(b).
"OPTIONAL SINKING FUND PAYMENT" has the meaning specified in Section 1201.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"ORIGINAL STATED MATURITY" has the meaning specified in Section 308.
"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 Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided, however, that, if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
-8-
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 316, (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 502, (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 Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar Equivalent as of such date of
original issuance of the amount determined as provided in clause (i) above), of
such Security, and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" has the meaning set forth in Section 314.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"PHYSICAL SECURITIES" means certificated Securities in registered form.
"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 on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the Rule
144A Securities and Other Securities that are Restricted Securities in the form
set forth in EXHIBIT B.
-9-
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" has the meaning specified in
Section 204.
"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 Article Eleven.
"REGISTRAR" has the meaning set forth in Section 314.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of January 13, 2004 between the Company and the Initial Purchasers.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment Date
on the Securities of or within any series means the date specified for that
purpose as contemplated by Section 301.
"REGULATION S" has the meaning specified in Section 204(a).
"REGULATION S SECURITIES" has the meaning set forth in Section 201(b).
"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 by or 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 by or
pursuant to this Indenture.
"RESET NOTICE" has the meaning specified in Section 307(b).
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, and any vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer in the Corporate
Trust Office 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, in each case located at the Corporate Trust Office of the Trustee.
"RESTRICTED PERIOD" has the meaning specified in Section 204(f).
"RESTRICTED SECURITY" has the same meaning as "Restricted Security" set
forth in Rule 144(a)(3) promulgated under the Securities Act; PROVIDED that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Security is a Restricted Security.
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"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" has the meaning specified in Section 204(a).
"RULE 144A SECURITIES" has the meaning set forth in Section 201(b).
"SALE/LEASEBACK TRANSACTION" means an arrangement relating to property now
owned or hereafter acquired whereby the Company or a Subsidiary transfers such
property to a Person and the Company or a Subsidiary leases it from such Person,
other than leases between the Company and a wholly-owned Subsidiary or between
wholly-owned Subsidiaries.
"SECURED PROJECTS" has the meaning specified in Section 1006(iv).
"SECURITIES" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture, including the Initial Securities; 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, pledge, lien, conditional sale or
other title retention agreement, or other similar security interest.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 305.
"SENIOR VICE PRESIDENT," when used with respect to the Company or the
Trustee, means any senior vice president, whether or not designated by a number
or a word or words added before or after the title "Senior Vice President."
"SIGNIFICANT FACILITY" means any plant or other facility of the Company or
any Subsidiary, whether now owned or hereafter acquired, having a book value as
of the date of determination in excess of 10% of Consolidated Net Tangible
Assets.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on the
Securities of or within any series means a date fixed by the Trustee pursuant to
Section 307.
"SPECIFIED AMOUNT" has the meaning specified in Section 312(h).
"STATED MATURITY," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable, including pursuant
to any mandatory redemption provision (but excluding any provision providing for
the repurchase of such Security at the option of the Holder thereof upon the
happening of any contingency beyond the control of the Company unless such
contingency has occurred), as such date may be extended pursuant to the
provisions of Section 308.
-11-
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in Section 307(b).
"SUBSIDIARY" means any corporation of which at the time of determination
the Company, directly and/or indirectly through one or more Subsidiaries, owns
more than 50% of the shares of Voting Stock.
"TAXES" has the meaning specified in Section 1009.
"TAX GROSS-UP AMOUNTS" has the meaning specified in Section 1009.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of 1939 as in
force at the date as of which this Indenture was executed, except as provided in
Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a 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 ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any State or the
District of Columbia or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
"VALUATION DATE" has the meaning specified in Section 312(c).
"VICE PRESIDENT", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"VOTING STOCK" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of a corporation (irrespective of whether or not
at the time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"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.
-12-
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than pursuant to Section 1004)
shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such covenant or condition has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, 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.
-13-
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of authority.
The fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to Board Resolution, fix in advance a record date
for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), such
record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior to the
first solicitation of Holders generally in connection therewith and not later
than the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or other
Act may be given before or after such record date, but only the Holders of
record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; PROVIDED, HOWEVER, that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it
shall become effective
-14-
pursuant to the provisions of this Indenture not later than eleven months
after the record date, and that no such authorization, agreement or consent
may be amended, withdrawn or revoked once given by a Holder, unless the
Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents
or unless and to the extent required by applicable law. If the Company elects
not to fix in advance a record date, then the record date shall be 30 days
prior to the first solicitation of any such consent.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
documents provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if in writing and mailed (first class postage
prepaid) or sent by facsimile to the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration Division, or
(2) the Company 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) or sent by facsimile to
the Company addressed to it at the address of its principal office
specified in the first paragraph of this Indenture, Attention: Treasurer,
or at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders by the Company 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 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. 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 when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be sufficient giving of such
notice for every purpose hereunder.
-15-
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. 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 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto, any Authenticating Agent, any Paying Agent, any Security Registrar and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of
New York,
without giving effect to applicable principles of conflicts of law to the extent
that the application of the laws of another jurisdiction would be required
thereby. 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.
SECTION 112. CONFLICT WITH TRUST INDENTURE ACT. If and to the extent that
any provision hereof limits, qualifies or conflicts with the duties imposed by
any of Sections 310 to 318, inclusive, of the Trust Indenture Act, through
operation of Section 318(c) thereof, such imposed duties shall control.
SECTION 113. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, sinking fund payment date or Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of any Security other
than a provision in the Securities of any series which specifically states that
such provision shall apply in lieu of this Section) payment of interest or
principal (and premium, 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
-16-
date, or at the Stated Maturity or Maturity; PROVIDED, HOWEVER, 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 114. CONVERSION OF CURRENCY. The Company covenants and agrees that
the following provisions shall apply to conversion of currency in the case of
the Securities and this Indenture:
(i)
(A) If for the purpose 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 in the payment currency (the "payment currency"), then
the conversion shall be made at the rate of exchange prevailing
on the Business Day before the day on which the judgment is given
or the order of enforcement is made, as the case may be (unless a
court shall otherwise determine).
(B) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or
an order of enforcement is made, as the case may be (or such
other date as a court shall determine), and the date of receipt
of the amount due, the Company will 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 payment currency originally due.
(ii) In the event of the winding-up of the Company at any time while any
amount or damages owing under the Securities and this Indenture, or
any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders 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 payment currency due or contingently
due under the Securities and this Indenture (other than under this
Subsection (ii)) 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 (ii), the final date
for the filing of proofs of claim in the winding-up of the Company
shall be the date fixed by the liquidator or otherwise in accordance
with the relevant provisions of applicable law as being the latest
practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
-17-
(iii) The obligations contained in Subsections (i)(B) and (ii) of this
Section 114 shall constitute separate and independent obligations of
the Company from its other obligations under the Securities and this
Indenture, shall give rise to separate and independent causes of
action against the Company, shall apply irrespective of any waiver or
extension granted by any Holder or the Trustee or any of them from
time to time and shall continue in full force and effect
notwithstanding any judgment or order or the filing of any proof of
claim in the winding-up of the Company for a liquidated sum in respect
of amounts due hereunder (other than under Subsection (ii) above) or
under any such judgment or order. Any such deficiency as aforesaid
shall be deemed to constitute a loss suffered by the Holders or the
Trustee, as the case may be, and no proof or evidence of any actual
loss shall be required by the Company or the liquidator or otherwise
or any of them. In the case of Subsection (ii) above, the amount of
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.
(iv) The term "rate(s) of exchange" shall mean the noon rate of exchange
quoted by the Bank of Canada for purchases of the payment currency
with the judgment currency other than the payment currency referred to
in Subsections (i) and (ii) above and includes any premiums and costs
of exchange payable.
SECTION 115. APPOINTMENT OF AGENT FOR SERVICE. By the execution and
delivery of this Indenture, the Company (i) acknowledges that it has, by
separate written instrument, 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 State of
New York, Borough of Manhattan, 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), and acknowledges
that CT Corporation System has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding, and (iii) agrees
that service of process upon CT Corporation System and written notice of said
service to the Company (mailed or delivered to its Treasurer at its principal
office in Calgary, Canada, as specified in Section 105(2) hereof) shall be
deemed in every respect effective service of process upon it in any such suit or
proceeding. The Company 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 this Indenture shall be in full force and
effect and so long as any of the Securities shall be outstanding.
To the extent that the Company 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 Company
hereby irrevocably waives such immunity in respect of its obligations under this
Indenture and the Securities, to the extent permitted by law.
-18-
The Company 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.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY. (a) The Securities of each series 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. The Initial
Securities shall be in substantially the form set forth in EXHIBIT A, which is
incorporated in and forms a part of this Indenture. 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 such action shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificate of authentication on all Securities shall be in
substantially the form set forth in this Article Two.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities as evidenced by their execution of
such Securities.
(b) Securities offered and sold to Qualified Institutional Buyers in
reliance on Rule 144A ("RULE 144A SECURITIES") shall bear the legend and include
the form of assignment set forth in EXHIBIT B, and Securities offered and sold
in offshore transactions in reliance on Regulation S ("REGULATION S SECURITIES")
shall bear the legend and include the form of assignment set forth in EXHIBIT C.
Each Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities shall constitute, and
are expressly made, a part of this Indenture and, to the extent applicable, the
Company, and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and agree to be bound thereby.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject to
Section 612, the Trustee's certificate of authentication shall be in
substantially the following form or such other form as may be required by the
Trustee:
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This is one of the Securities of the series designated therein referred to
in the within mentioned Indenture.
U.S. Bank National Association,
as Trustee
By:
----------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or within
a series are issuable in global form (a "GLOBAL SECURITY"), as specified as
contemplated by Section 204 and Section 301, then, notwithstanding clause (8) of
Section 301, 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 Global Security 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 Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Global Security if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section
303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Global Security shall be made to the Person or Persons specified
therein.
Notwithstanding the provisions of Section 309 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent Global Security the Holder of such
permanent Global Security in registered form.
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SECTION 204. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES. (a) Securities,
including without limitation the Initial Securities, offered and sold to a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) (a "QUALIFIED INSTITUTIONAL BUYER" or "QIB") in reliance on Rule 144A under
the Securities Act ("RULE 144A") or in reliance on Regulation S under the
Securities Act ("REGULATION S") shall be initially represented by one or more
Global Securities with the restricted securities legend set forth in EXHIBIT B
or EXHIBIT C , as applicable. The Global Securities shall bear legends as set
forth in EXHIBIT D. The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, in each case for
credit to an account of an Agent Member (or, in the case of the Regulation S
Global Securities, of Euroclear System ("EUROCLEAR") and Clearstream Banking
Luxembourg ("CLEARSTREAM")), and (ii) be delivered to the Trustee as custodian
for such Depository.
Members of, or direct or indirect participants in, the Depository ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Securities, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depository
or impair, as between the Depository and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to transfer in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Securities may be transferred or
exchanged for Physical Securities in accordance with the rules and procedures of
the Depository and the provisions of Section 205. In addition, a Global Security
shall be exchangeable for Physical Securities if (i) the Depository (x) notifies
the Company that it is unwilling or unable to continue as depository for such
Global Security and the Company thereupon fails to appoint a successor
depository or (y) has ceased to be a clearing agency registered under the
Exchange Act, (ii) the Company, at its option, notifies the Trustee in writing
that it elects to cause the issuance of such Physical Securities or (iii) there
shall have occurred and be continuing an Event of Default with respect to the
Securities. In all cases, Physical Securities delivered in exchange for any
Global Security or beneficial interests therein shall be registered in the
names, and issued in any approved denominations, requested by or on behalf of
the Depository (in accordance with its customary procedures).
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in any Global Security to beneficial owners of Physical
Securities pursuant to paragraph (b), the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of the Global
Security in an amount equal to the principal amount of the beneficial interest
in the Global Security to be transferred or exchanged, and the Company shall
execute, and the Trustee shall upon receipt of a written order from the Company
authenticate and make available for delivery, one or more Physical Securities of
like tenor and amount.
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(d) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b), the Global Securities shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depository in writing in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (b), (c) or
(d) shall, except as otherwise provided by paragraph (b) of Section 205, bear
the Private Placement Legend or, in the case of Physical Securities delivered in
exchange for an interest in the Regulation S Security, the legend set forth in
EXHIBIT C, in each case, unless the Company determines otherwise in compliance
with applicable law.
(f) On or prior to the 40th day after the later of the commencement of the
offering of any Securities represented by any Regulation S Security and the
issue date of such Securities (such period through and including such 40th day,
the "RESTRICTED PERIOD"), a beneficial interest in a Regulation S Security may
be transferred to a Person who takes delivery in the form of an interest in the
corresponding Restricted Global Security only upon receipt by the Trustee of a
written certification from the transferor to the effect that such transfer is
being made (i)(a) to a Person that the transferor reasonably believes is a
Qualified Institutional Buyer in a transaction meeting the requirements of Rule
144A or (b) pursuant to another exemption from the registration requirements
under the Securities Act which is accompanied by an Opinion of Counsel regarding
the availability of such exemption and (ii) in accordance with all applicable
securities laws of any state of the United States or any other jurisdiction.
(g) Beneficial interests in the Global Security may be transferred to a
Person who takes delivery in the form of an interest in the Regulation S
Security, whether before or after the expiration of the Restricted Period, only
if the transferor first delivers to the Trustee a written certificate to the
effect that such transfer is being made in accordance with Regulation S or Rule
144 (if available) and that, if such transfer occurs prior to the expiration of
the Restricted Period, the interest transferred will be held immediately
thereafter through Euroclear or Clearstream.
(h) Any beneficial interest in one of the Global Securities that is
transferred to a Person who takes delivery in the form of an interest in another
Global Security shall, upon transfer, cease to be an interest in such Global
Security and become an interest in such other Global Security and, accordingly,
shall thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Security for as long as
it remains such an interest.
(i) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 205. SPECIAL TRANSFER PROVISIONS. (a) TRANSFERS TO QIBS. The
following provisions shall apply with respect to the registration or any
proposed registration of
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transfer of any Security constituting a Restricted Security to a QIB (excluding
transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such transfer is
being made by a proposed transferor who has checked the box provided for on
such Holder's Security stating, or to a transferee who has advised the
Company and the Registrar in writing, that it is purchasing the Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a QIB within the
meaning of Rule 144A, and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule 144A
or has determined not to request such information and that it is aware that
the transferor is relying upon its foregoing representations in order to
claim the exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Global Security, upon receipt by the
Registrar of instructions given in accordance with the Depository's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Global
Security in an amount equal to the principal amount of the Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(b) PRIVATE PLACEMENT LEGEND. Upon the registration of transfer, exchange
or replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar shall deliver only
Securities that bear the Private Placement Legend unless (i) there is delivered
to the Registrar an Opinion of Counsel reasonably satisfactory to the Company
and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act or (ii) such Security has been sold pursuant to
an effective registration statement under the Securities Act and the Registrar
has received an Officers' Certificate from the Company to such effect.
(c) GENERAL. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
The Registrar shall retain for a period of two years copies of all letters,
notices and other written communications received pursuant to Section 204 or
this Section 205. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable notice to the Registrar.
SECTION 206. CUSIP NUMBER. The Company in issuing the Securities may use a
"CUSIP" number, and if so, such CUSIP number shall be included in notices of
redemption or exchange as a convenience to Holders; PROVIDED that any such
notice may state that no
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representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Securities, and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any such CUSIP number used by the Company in
connection with the issuance of the Securities and of any change in the CUSIP
number.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth in, or
determined in the manner provided in, an 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 (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined or extended, on which the principal of the Securities of the
series is payable;
(4) the rate or rates 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 Security on any
Interest Payment Date, or the method by which such date or dates shall be
determined, and the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and any interest on Securities of the series shall be
payable, any Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and,
if different than the location specified in Section 105, the place or
places
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where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at which,
the Currency in which, and other terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods
within which, the price or prices at which, the Currency in which, and
other terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(9) if other than the Trustee or the Company, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency in which payment of the
principal of (and premium, if any) or interest, if any, on the Securities
of the series shall be payable or in which the Securities of the series
shall be denominated and the particular provisions applicable thereto in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(12) whether the amount of payments of principal of (and premium, if
any) or interest on the Securities of the series may be determined with
reference to a formula or other method and the manner in which such amounts
shall be determined;
(13) whether the principal of (and premium, if any) and interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in a Currency other than that in which
such Securities are denominated or stated to be payable, the period or
periods within which (including the Election Date), and the terms and
conditions upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in
which such Securities are to be so payable, in each case in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
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(15) any provisions in modification of, in addition to or in lieu of
the provisions of Article Fourteen that shall be applicable to the
Securities of the series;
(16) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(17) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to 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;
(18) the Person to whom any interest on any 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 and the extent to which, or
the manner in which, any interest payable on a temporary global Security on
an Interest Payment Date will be paid if other than in the manner provided
in Section 304;
(19) 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;
(20) 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;
(21) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series in respect of certain
taxes (and the terms of any such payment) and, if so, whether the Company
will have the option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option); and
(22) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series (which
terms shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution (subject to Section 303) 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 expressly provided
for in such Securities, a series may not 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 302. DENOMINATIONS. All Securities shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Securities of such series, other than Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities
shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Operating Officer, its President, any Senior Vice President or a Vice
President, under its corporate seal reproduced thereon attested by its Secretary
or an Assistant Secretary. The signature of any of these officers on the
Securities may be the manual or facsimile signature of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If not
all the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, maturity date, date of issuance and date from
which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d)) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities have been established in
conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to a Board Resolution, that the terms of such Securities have been
established in conformity with the provisions of this Indenture; and
(c) that such Securities when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the Trustee
in accordance with this Indenture and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will
constitute the valid and binding obligations of the Company, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and other similar laws of
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general applicability relating to or affecting the enforcement of
creditors' rights, and to general equitable principles.
Notwithstanding the provisions of Section 301 and of the preceding two
paragraphs, if not all the Securities of any series are to be issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to the preceding two paragraphs prior to or at the
time of issuance of each Security, but such documents shall be delivered prior
to or at the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Each Security shall be dated the date of its authentication.
No Security 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 Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 310 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of definitive
Securities of any series, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be Global Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series, upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange
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therefor a like principal amount of definitive Securities of the same series of
authorized denominations. Until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. So long
as required by the laws of the Province of Alberta, the Company shall keep at
its principal office in the Province of Alberta, or shall cause to be kept at
the office of a trust corporation registered under the Loan and Trust
Corporations Act (Alberta), a securities register (the "CENTRAL REGISTER") of
Holders maintained in compliance with the laws of the Province of Alberta. The
Company will cause the particulars of each such issue, exchange or transfer of
Securities to be recorded in the Central Register. The Company shall initially
be the central security registrar (the "CENTRAL SECURITY REGISTRAR") for the
purpose of registering Securities and transfers and exchanges of Securities in
the Central Register as provided herein; PROVIDED, HOWEVER, the Company may
appoint from time to time one or more successor Central Security Registrars and
may from time to time rescind any such appointment. If no longer required by the
laws of the Province of Alberta, the Company may appoint a Person other than the
Company or a trust corporation registered under the Loan and Trust Corporations
Act (Alberta) as the Central Security Registrar.
The Company shall also cause to be maintained a branch register (a "BRANCH
REGISTER") or branch registers of Holders in accordance with Section 1002 in the
same manner and containing the same information with respect to each entry
contained therein as contained in the Central Register. A copy of every entry in
a branch register shall, promptly after the entry is made, be transmitted to the
Central Security Registrar. If there is a conflict between the information
contained in the Central Register and the information contained in the branch
register, the information contained in the Central Register shall prevail. The
Central Register together with each branch register are collectively referred to
herein as the "SECURITY REGISTER". At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as branch security registrar (the "BRANCH SECURITY
REGISTRAR") for the purpose of maintaining a branch register at its Corporate
Trust Office; PROVIDED, HOWEVER, the Company may appoint from time to time one
or more successor or additional Branch Security Registrars and may from time to
time rescind any such appointment. The Central Security Registrar together with
each Branch Security Registrar are collectively referred to herein as the
"SECURITY REGISTRAR".
Upon surrender for registration of transfer of any Security of any series
at the office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall
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authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 Business Days before the day of the selection for redemption of
Securities of that series under Section 1103 or 1203 and ending at the close of
business on the day of the mailing of the relevant notice of redemption or (ii)
to register the transfer of or exchange any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being
redeemed in part, or (iii) to issue, register the transfer of or exchange any
Security which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding or, in case any such mutilated Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon receipt of a Company Order the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security, a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, or, in
case any such destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security pay such Security.
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Upon the issuance of any new Security under this Section 306, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 306 in
lieu of any destroyed, lost or stolen Security shall constitute a valid
contractual obligation of the Company evidencing the same debt as the Security
in lieu of which it is issued, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Securities of that series.
The provisions of this Section 306 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL
INTEREST RESET. (a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of interest on any Security may at the Company's option be paid by
(i) mailing a check for such interest, payable to or upon the written order of
the Person entitled thereto pursuant to Section 309, to the address of such
Person as it appears on the Security Register or (ii) transferring such interest
to an account maintained by the payee located inside the United States.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in Sections 312(b),
312(d) and 312(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted
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Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose name
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company 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 307(b) may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "OPTIONAL RESET
DATE"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice prepared by the
Company (the "RESET NOTICE") indicating whether the Company has elected to reset
the interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (i) such new interest rate (or such new
spread or spread multiplier, if applicable) and (ii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "SUBSEQUENT INTEREST
PERIOD"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the Optional
Reset Date, the Company may, at its option, revoke the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
provided for in the Reset Notice and establish an interest rate (or a spread or
spread multiplier used to calculate such interest rate, if applicable) that is
higher than the interest rate (or the spread or spread multiplier, if
applicable) provided for in the Reset Notice, for the Subsequent Interest Period
by causing the Trustee to transmit, in the
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manner provided for in Section 106, notice of such higher interest rate (or such
higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to which
the interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) is reset on an Optional Reset Date, and with
respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant to
the next succeeding paragraph, will bear such higher interest rate (or such
higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect repayment by
the Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such Optional
Reset Date and except that, if the Holder has tendered any Security for
repayment pursuant to the Reset Notice, the Holder may, by written notice to the
Trustee, revoke such tender or repayment until the close of business on the
tenth day before such Optional Reset Date.
(c) Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of this Section
308 may be made applicable to any series of Securities pursuant to Section 301
(with such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The Stated Maturity of any Security of such
series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an "EXTENSION PERIOD") up to but
not beyond the date (the "FINAL MATURITY") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "ORIGINAL STATED MATURITY"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice prepared by the Company (the "EXTENSION NOTICE")
indicating (i) the election of the Company to extend the Maturity, (ii) the new
Stated Maturity, (iii) the interest rate applicable to the Extension Period and
(iv) the provisions, if any, for redemption during such Extension Period. Upon
the Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the Original
Stated Maturity of such Security, the Company may, at its option, revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by causing the Trustee to transmit, in
the manner provided for in Section 106, notice of such higher interest
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rate to the Holder of such Security. Such notice shall be irrevocable. All
Securities with respect to which the Stated Maturity is extended will bear such
higher interest rate.
If the Company extends the Maturity of any Security, the Holder will have
the option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain repayment on the Original Stated
Maturity once the Company has extended the Maturity thereof, the Holder must
follow the procedures set forth in Article Thirteen for repayment at the option
of Holders, except that the period for delivery or notification to the Trustee
shall be at least 25 but not more than 35 days prior to the Original Stated
Maturity and except that, if the Holder has tendered any Security for repayment
pursuant to an Extension Notice, the Holder may by written notice to the Trustee
revoke such tender for repayment until the close of business on the tenth day
before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the legal owner of such Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 305 and
307) interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or any 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 Global Security 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 Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
Global Security or impair, as between such depositary and owners of beneficial
interests in such Global Security, the operation of customary practices
governing the exercise of the rights of such depositary (or its nominee) as
Holder of such Global Security.
SECTION 310. CANCELLATION. All Securities 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 so delivered to the Trustee shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered, shall be promptly cancelled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for
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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. Unless by Company Order the Company directs the
return of any cancelled Securities to it, all cancelled Securities shall be
destroyed by the Trustee and upon written request of the Company the Trustee
shall deliver its certificate of such destruction to the Company.
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to any Securities, interest on the
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES. (a)
Unless otherwise specified with respect to any Securities pursuant to Section
301, with respect to 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, except as provided in paragraph
(d) below, payment of the principal of (and premium, if any) and interest, if
any, on any Security of such series will be made in the Currency in which such
Security is payable. The provisions of this Section 312 may be modified or
superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to Securities
of any series that Holders shall have the option, subject to paragraphs (d) and
(e) below, to receive payments of principal of (and premium, if any) or
interest, if any, on such Securities in any of the Currencies which may be
designated for such election by delivering to the Trustee for such series of
Securities a written election with signature guarantees and in the applicable
form established pursuant to Section 301, not later than the close of business
on the Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such Currency, such election
will remain in effect for such Holder or any transferee of such Holder until
changed by such Holder or such transferee by written notice to the Trustee for
such series of Securities (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
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Articles
Four or Fourteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Security who shall not have
delivered any such election to the Trustee of such series of Securities not
later than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency as
provided in Section 312(a). The Trustee for each such series of Securities shall
notify the Exchange Rate Agent as soon as practicable after the Election Date of
the aggregate principal amount of Securities for which Holders have made such
written election.
(c) Unless otherwise specified pursuant to Section 301, if the election
referred to in paragraph (b) above has been provided for pursuant to Section
301, then, unless otherwise specified pursuant to Section 301, not later than
the fourth Business Day after the Election Date for each payment date for
Securities of any series, the Exchange Rate Agent will deliver to the
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Company a written notice specifying, in the Currency in which Securities of such
series are payable, the respective aggregate amounts of principal of (and
premium, if any) and interest, if any, on the Securities to be paid on such
payment date, specifying the amounts in such Currency so payable in respect of
the Securities as to which the Holders denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above. If
the election referred to in paragraph (b) above has been provided for pursuant
to Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Securities an Exchange Rate Officer's Certificate in respect of the
Dollar or Foreign Currency payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency
amount receivable by Holders who have elected payment in a Currency as provided
in paragraph (b) above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the third Business Day (the
"VALUATION DATE") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then with respect to each
date for the payment of principal of (and premium, if any) and interest, if any,
on the applicable Securities denominated or payable in such Foreign Currency
occurring after the last date on which such Foreign Currency was used (the
"CONVERSION DATE"), the Dollar shall be the Currency of payment for use on each
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar amount to be paid by the Company to the Trustee of each such series of
Securities and by such 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 301, if the Holder of a
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
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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 312 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.
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 that shall be
equal to the Dollar Equivalent 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 Securities as
specified pursuant to clause (13) of Section 301 by which the written
election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding the
Dollar Equivalent of the Foreign Currency, 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 Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate
Agent shall promptly give written notice to the Company and the Trustee for the
appropriate series of Securities of any such decision or determination.
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In the event that the Company determines in good faith that a Conversion
Event has occurred with respect to a Foreign Currency, the Company will
immediately give written notice thereof to the Trustee of the appropriate series
of Securities and to the Exchange Rate Agent (and such Trustee will promptly
thereafter give notice in the manner provided in Section 106 to the affected
Holders) specifying the Conversion Date. In the event the Company so determines
that a Conversion Event has occurred with respect to any currency unit in which
Securities are denominated or payable, the Company will immediately give written
notice thereof to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company 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 Company will similarly give written
notice to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Unless otherwise specified pursuant to Section 301, if any provision of
this Section 312 shall be inconsistent with any provision of Section 114, the
provisions of Section 114 shall govern.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long as the
Securities of any series (i) are denominated in a Currency other than Dollars or
(ii) may be payable in a Currency other than Dollars, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent to
make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Currency into the applicable payment Currency for the payment of principal (and
premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of the Exchange Rate Agent
for any cause, with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents
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with respect to the Securities of that or those series (it being understood that
any such successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be one Exchange
Rate Agent with respect to the Securities of any particular series that are
originally issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
SECTION 314. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "REGISTRAR"), and an office or agency where Securities may
be presented for payment (the "PAYING AGENT") and an office or agency where
notices and demands to or upon the Company, if any, in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
additional Paying Agents. The term "Paying Agent" includes any additional Paying
Agent. Neither the Company nor any Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement, which shall
incorporate the provisions of the TIA, with any Agent that is not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or
Paying Agent, or fails to give the foregoing notice, the Trustee shall act as
such and shall be entitled to appropriate compensation in accordance with
Section 607.
The Company initially appoints the Trustee as Registrar, Paying Agent and
Agent for service of notices and demands in connection with the Securities and
this Indenture.
SECTION 315. PAYING AGENT TO HOLD MONEY IN TRUST. Each Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal of or premium or interest on the
Securities (whether such money has been paid to it by the Company or any other
obligor on the Securities), and the Company and the Paying Agent shall notify
the Trustee of any default by the Company (or any other obligor on the
Securities) in making any such payment. Money held in trust by the Paying Agent
need not be segregated except as required by law. The Company at any time may
require the Paying Agent to pay all money held by it to the Trustee and account
for any funds disbursed and the Trustee may at any time during the continuance
of any Event of Default specified in Section 501(1) or (2), upon written request
to the Paying Agent, require such Paying Agent to pay forthwith all money so
held by it to the Trustee and to account for any funds disbursed. Upon making
such payment, the Paying Agent shall have no further liability for the money
delivered to the Trustee. The Paying Agent shall invest money held by it only
upon the written instructions of the Company.
SECTION 316. NOTEHOLDER LISTS. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of the Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee at least five Business Days before each
Interest Payment Date, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee
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may reasonably require of the names and addresses of the Holders.
SECTION 317. TRANSFER AND EXCHANGE. Subject to Sections 204 and 205, when
Securities are presented to the Registrar with a request from the Holder of such
Securities to register a transfer or to exchange them for an equal principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer as requested. Every Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or be accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorneys duly authorized
in writing. To permit registrations of transfers and exchanges, the Company
shall issue and execute and the Trustee shall authenticate new Securities
evidencing such transfer or exchange at the Registrar's request. No service
charge shall be made to the Holder for any registration of transfer or exchange.
The Company may require from the Holder payment of a sum sufficient to cover any
transfer taxes or other governmental charge that may be imposed in relation to a
transfer or exchange, but this provision shall not apply to any exchange
pursuant to Section 304 or 1107, (in which events the Company shall be
responsible for the payment of such taxes). The Registrar shall not be required
to exchange or register a transfer of any Security for a period of 15 days
immediately preceding the mailing of notice of redemption of Securities to be
redeemed or of any Security selected, called or being called for redemption
except the unredeemed portion of any Security being redeemed in part.
Any Holder of the Global Security or a beneficial interest in the Global
Security shall, by acceptance of such Global Security or beneficial interest,
agree that transfers of the beneficial interests in such Global Security may be
effected only through a book entry system maintained by the Holder of such
Global Security (or its agent), and that ownership of a beneficial interest in
the Global Security shall be required to be reflected in a book entry.
Except as expressly provided herein, neither the Trustee nor the Registrar
shall have any duty to monitor the Company's compliance with or have any
responsibility with respect to the Company's compliance with any Federal or
state securities laws.
SECTION 318. OUTSTANDING SECURITIES. The Securities outstanding at any time
are all Securities that have been authenticated by the Trustee except for (a)
those canceled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 1401, on or after the date on which the conditions
set forth in Section 1401 have been satisfied, those Securities theretofore
authenticated and delivered by the Trustee hereunder and (d) those described in
this Section 318 as not outstanding.
If a Security is replaced pursuant to Section 306, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser in whose hands such Security
is a legal, valid and binding obligation of the Company.
If the Paying Agent holds, in its capacity as such, on the Maturity Date,
money sufficient to pay all accrued interest and principal with respect to the
Securities payable on that date and is not prohibited from paying such money to
the Holders thereof pursuant to the terms
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of this Indenture, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon Company Request cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of registration of transfer or
exchange of Securities of such series herein expressly provided for) and the
Trustee, at the expense of the Company, 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) Securities of such series which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii)
Securities of such series for whose payment money has
theretofore been deposited with the Trustee or any Paying
Agent and thereafter repaid to the Company, as provided in
Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series 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 Company, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the 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 to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company 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 Company to the Trustee under Section 607, the obligation of
the Company to pay Tax Gross-Up Amounts and any indemnification payments under
Section 1009, the obligations of the Trustee to any Authenticating Agent under
Section 612 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company 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 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 FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever used herein
with respect to Securities of any series, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest (including Tax Gross-Up
Amounts) or Additional Interest, if any, upon any Security of that series
when such interest becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of or premium, if any, on
any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund or analogous payment
when due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty, a
default in whose performance or whose breach is elsewhere in this Section
501 specifically dealt with), and continuance of such default or breach for
a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount of all Outstanding
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Securities a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company a bankrupt or insolvent under or subject
to the Bankruptcy and Insolvency Act (Canada), the Companies' Creditors
Arrangement Act (Canada) or any other bankruptcy, insolvency or analogous
laws, or the issuance of a sequestration order or the appointment of a
receiver in receipt of any substantial part of the property of the Company,
and any such decree, order or appointment continues unstayed and in effect
for a period of 90 days; or
(6) the institution by the Company of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of
bankruptcy or insolvency proceedings against it, under or subject to the
Bankruptcy and Insolvency Act (Canada), the Companies' Creditors
Arrangement Act (Canada) or any other bankruptcy, insolvency or analogous
laws or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of its
property, or the making by it of a general assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due or the taking by it of corporate action
in furtherance of any of the aforesaid purposes; or
(7) (A) default under any indenture or instrument evidencing or under
which the Company or any Subsidiary has at the date of this Indenture or
shall hereafter have outstanding any Debt (other than an obligation payable
on demand or maturing less than 12 months from the date such Debt is
incurred) in any individual instance in excess of an amount equal to 5% of
Consolidated Shareholders' Equity shall occur and be continuing and, if
such Debt has not already matured in accordance with its terms, such Debt
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, and such acceleration shall not be rescinded or annulled
within 15 Business Days after notice thereof shall have been given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of all Outstanding Securities or
(B) default in any payment when due at final maturity of any such Debt,
including any applicable grace period; or
(8) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default described in clause (1), (2), (3) or (8) of Section 501 with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of the Outstanding Securities of that series may declare
the principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration
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such principal amount (or specified portion thereof) shall become immediately
due and payable. If an Event of Default described in clause (4) or (7) of
Section 501 occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of all the Securities then
Outstanding may declare the principal amount (or, if any such Securities are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all of the Outstanding Securities
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by the Holders) and upon any such declaration such
principal amount (or specified portion thereof) shall become immediately due and
payable. If an Event of Default described in clause (5) or (6) of Section 501
occurs and is continuing, all outstanding Securities will become due and payable
immediately without further action or notice.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article Five provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)),
(A) all overdue interest on all Outstanding Securities of that
series (or of all series, as the case may be),
(B) all unpaid principal of (and premium, if any, on) any
Outstanding Securities of that series (or of all series, as the case
may be) which has become due otherwise than by such declaration of
acceleration, and interest on such unpaid principal at the rate or
rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest 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) or interest on Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and
interest on any overdue principal (and premium, if any), and to the extent that
payment of such interest is lawful, interest 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 Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series (or of all
series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company 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 Company 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 as may be specified in the terms of such
series, and interest owing and unpaid in respect of the Securities and to
file such other papers or documents as may be
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necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any, on) or interest, upon
presentation of the Securities, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities 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 for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Company or any other Person or
Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this
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Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series in the case of any Event of Default
described in clause (1), (2), (3) or (8) of Section 501, or, in the case of
any Event of Default described in clause (4), (5), (6) or (7) of Section
501, the Holders of not less than 25% in principal amount of all
Outstanding Securities, shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of not less than a
majority in principal amount of the Outstanding Securities of that series
in the case of any Event of Default described in clause (1), (2), (3) or
(8) of Section 501, or, in the case of any Event of Default described in
clause (4), (5), (6) or (7) of Section 501, by the Holders of not less than
a majority in principal amount of all Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in clause (1), (2), (3) or (8) of Section 501, or of Holders of all
Securities in the case of any Event of Default described in clause (4), (5), (6)
or (7) of Section 501, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in clause (1), (2), (3) or (8) of Section 501, or of Holders
of all Securities in the case of any Event of Default described in clause (4),
(5), (6) or (7) of Section 501.
SECTION 508. 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), including
Redemption Price and Repayment Price, and (subject to Section 307) interest on,
such Security on the respective due dates therefor and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
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SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS. With respect to the Securities of any
series, the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, relating to
or arising under clause (1), (2), (3) or (8) of Section 501, and, with respect
to all Securities, the Holders of not less than a majority in principal amount
of all Outstanding Securities 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, not relating to or
arising under clause (1), (2), (3) or (8) of Section 501, PROVIDED, HOWEVER,
that in each case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
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SECTION 513. WAIVER OF PAST DEFAULTS. Subject to Section 502, the Holders
of not less than a majority in principal amount of the Outstanding Securities
of any series may on behalf of the Holders of all the Securities of such
series waive any past default described in clause (1), (2), (3) or (8) of
Section 501, (or, in the case of a default described in clause (4), (5), (6)
or (7) of Section 501, the Holders of not less than a majority in principal
amount of all Outstanding Securities may waive any such past default), and its
consequences, except a default
(1) in respect of the payment of the principal of (or premium, if
any) or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities to which the suit relates, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any), including Redemption Price and Repayment Price, or interest on any
Security on or after the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS. The Company 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 Company (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.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES. (a) Except during the
continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, determined as provided in Section 512, relating
to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee 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.
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(d) Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any), including
Redemption Price and Repayment Price, or interest 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 provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company 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 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 pursuant to this
Indenture, unless such Holders shall have offered
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to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(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.
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 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities, except that
the Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are true and accurate, subject to the
qualifications set forth therein. The Trustee or any Authenticating Agent shall
not be accountable for the use or application by the Company of Securities or
the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES. The Trustee, any Authenticating Agent,
any Paying Agent, any Security Registrar or any other agent of the Company or of
the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The
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Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
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 and the allocable costs of
in-house counsel), except any such expense, disbursement or advance as may
be attributable to its negligence or bad faith or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith or
willful misconduct 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 or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
The obligations of the Company 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 Company, 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 (and
premium, if any), including Redemption Price and Repayment Price or
interest on particular Securities.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000. If such corporation or
national banking association 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 or national banking association shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance
of appointment by the successor Trustee in accordance with the applicable
requirements of Section 610.
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(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 610 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 608 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(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 Company, by a Board Resolution, may remove the
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in
the manner hereinafter provided, any Holder who has been a bona fide Holder
of a Security of
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such series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to the Holders
of Securities of such series in the manner provided for in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee so appointed shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company 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, subject nevertheless to its lien, if any,
provided for in Section 607.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
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 Trustee 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 to resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment
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of such successor Trustee relates, subject nevertheless to the lien, if any,
provided for in Section 607. Whenever there is a successor Trustee with respect
to one or more (but less than all) series of securities issued pursuant to this
Indenture, the terms "Indenture" and "Securities" shall have the meanings
specified in the provisos to the respective definitions of those terms in
Section 101 which contemplate such situation.
(c) Upon request of any such successor Trustee, the Company 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 610, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation or national banking association into which the Trustee may be
merged or converted or with which it may be consolidated, or any corporation or
national banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
national banking association succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation or national banking association 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; and in case at that time any of the
Securities shall not have been authenticated, any successor Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; 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 612. 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 106. Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such 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 Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's
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certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation or national banking association
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 or national banking association 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 or national banking association
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 or national banking association 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 or national banking association succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation or national banking association
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 Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company 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 106. 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 Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
U.S. Bank National Association,
as Trustee
By
as Authenticating Agent
By
Authorized Officer
SECTION 613. CO-TRUSTEE. (a) At any time, only for the purpose of, and only
to the extent required for, meeting the legal requirements of any applicable
jurisdiction, the Trustee shall have the power to appoint one or more persons to
act as co-trustee under this Indenture, with such powers as may be provided in
the instrument of appointment, and to vest in such person or persons any
property, title, right or power deemed necessary or desirable, subject to the
remaining provisions of this Section. Before the appointment of any co-trustee
the Trustee shall, if the circumstances so permit, consult the Company and if
any co-trustee so appointed shall be a person to whose appointment the Company
might reasonably object by reason of any conflict of interest or other
disability, a determination made by the Trustee (after consulting its legal
advisor in the appropriate jurisdiction) that in its opinion there is no such
conflict of interest or other disability in relation to any such co-trustee
shall be conclusive and binding upon the Company.
Should any written instrument from the Company be required by any
co-trustee so appointed for more fully confirming to such co-trustee such
property, title, right or power, any and all such instruments shall, on request,
be executed, acknowledged and delivered by the Company.
(b) Each co-trustee shall, to the extent permitted by applicable law, be
appointed subject to the following terms:
(1) The rights, powers, duties and obligations conferred or imposed
upon any such co-trustee shall not be greater than those conferred or
imposed upon the Trustee, and such rights and powers shall be exercisable
only jointly with the Trustee, except to the extent that, under any law of
any jurisdiction in which any particular act or acts is to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights and powers shall be exercised by such
co-trustee subject to the provisions of Section 613(b)(4) below.
(2) The Trustee may at any time, by an instrument in writing executed
by it, accept the resignation of or remove any co-trustee appointed under
this Section.
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(3) No co-trustee under this Indenture shall be liable by reason of
any act or omission of any other co-trustee appointed under this Indenture.
(4) No power given to such co-trustee shall be separately exercised
hereunder by such co-trustee except with the consent in writing of the
Trustee.
(c) The provisions of Section 607 hereof shall extend to any co-trustee,
its officers, employees, agents, successors and assigns appointed hereunder.
(d) Any Act of Holders delivered to the Trustee shall be deemed to have
been delivered to each such co-trustee.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any agent of either of them shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. 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, in the manner and
to the extent provided in TIA Section 313(c), a brief report dated as of such
May 15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY. The Company shall:
(1) file with the Trustee, within 15 days after the Company 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 Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934. Notwithstanding that the Company may not
be required to remain subject to the reporting requirements of Section 13
or 15(d) of the Exchange Act, or otherwise report on an annual and
quarterly basis on forms provided for such annual and quarterly reporting
pursuant to rules and regulations promulgated by the Commission, the
Company shall be required to continue to file with, or furnish to, the
Commission and provide the Trustee and Holders of Securities: (a) within
120 days after the end of each fiscal year (or such shorter period as the
Commission may in the future prescribe), annual reports on Form 40-F (or
any successor form) containing the information required to be contained
therein (or required in such successor form), (b) within 60 days after the
end of each of the first three fiscal quarters of each fiscal year (or such
shorter period as the Commission may in the future prescribe), reports on
Form 6-K (or any successor form) and (c) promptly from time to
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time after the occurrence of an event required to be therein reported, such
other reports on Form 6-K (or any successor form); PROVIDED, HOWEVER, that
the Company shall not be so obligated to file such reports with the
Commission if the Commission does not permit such filings. The Company also
shall comply with the other provisions of Section 314(a) of the TIA;
(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 Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit to all Holders, in the manner and to the extent provided
in TIA Section 313(c), within 30 days after the filing thereof with the
Trustee, such summaries of any information, documents and reports required
to be filed by the Company 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.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. The
Company shall not amalgamate or consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or amalgamation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust
organized and existing under the laws of Canada or any province or
territory thereof, the United States of America or any State thereof or the
District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the Company's obligation for the due and
punctual payment of the principal of (and premium, if any), including
Redemption Price and Repayment Price, and interest on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such amalgamation,
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
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This Section shall only apply to a merger, amalgamation or consolidation in
which the Company is not the surviving corporation and to conveyances, leases
and transfers by the Company as transferor or lessor.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any amalgamation or
consolidation by the Company with or merger by the Company into any other Person
or any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
Person formed by such amalgamation or consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor corporation had
been named as the Company herein, and in the event of any such conveyance or
transfer, the Company (which term shall for this purpose mean the Person named
as the "Company" in the first paragraph of this Indenture or any successor
corporation which shall theretofore become such in the manner described in
Section 801), except in the case of a lease, shall be discharged of all
obligations and covenants under this Indenture and the Securities and may be
dissolved and liquidated.
SECTION 803. SECURITIES TO BE SECURED IN CERTAIN EVENTS. If, as a result of
any amalgamation or consolidation of the Company with or merger of the Company
with any other Person, or upon any conveyance, lease or transfer of the property
of the Company as an entirety or substantially as an entirety to any other
Person, any properties or assets of the Company would become subject to a
mortgage, pledge, charge, security interest or other encumbrance securing Debt,
then unless such mortgage, pledge, charge, security interest or other
encumbrance could be created without equally and ratably securing the Securities
under Section 1006, the Company or such successor Person, as the case may be,
prior to or simultaneously with such amalgamation, consolidation, merger,
conveyance, lease or transfer, will, with respect to such properties or assets,
secure the Securities Outstanding hereunder (together with, if the Company shall
so determine, any other Debt of the Company now existing or hereafter created
which is not subordinate to the Securities) equally and ratably with (or prior
to) all such Debt which upon such amalgamation, consolidation, merger,
conveyance, lease or transfer is to become secured as to such properties or
assets, or will cause such Securities to be so secured; PROVIDED that for the
purpose of providing such equal and rateable or prior security, the principal
amount of Original Issue Discount Securities shall mean that amount which would
at the time of making such effective provision be due and payable pursuant to
Section 502 and the terms of such Original Issue Discount Securities 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.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders, the Company, when authorized by or pursuant to a
Board Resolution,
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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 Company and
the assumption by any such successor of the covenants of the Company
contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; 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 (a) 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 (b) shall not apply to any Outstanding
Security; or
(5) to secure the Securities pursuant to the requirements of Section
803, 1006 or 1007 or otherwise; or
(6) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 610(b); or
(8) 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 defective or
inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this
Indenture; PROVIDED, HOWEVER, such action shall not adversely affect the
interests of the Holders of Securities of any particular series in any
material respect; or
(9) to comply with any requirements of the Commission in order to
effect and maintain the qualification of the Indenture under the Trust
Indenture Act; 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
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Securities pursuant to Sections 401, 1402 and 1403; PROVIDED, HOWEVER, that
any such action shall not adversely affect the interests of the Holders of
Securities of such series or any other series of Securities in any material
respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, 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 Securities or of modifying in any manner the
rights of the Holders of such Securities under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or change the time at which any Security may
or shall be redeemable or repayable or reduce the principal amount thereof
or the rate of interest thereon or any premium, including Redemption Price
and Repayment Price, payable upon the redemption or repayment thereof, or
change any obligation of the Company to pay additional amounts provided for
pursuant to Section 301, change any obligation of the Company to pay
Tax-Gross Up Amounts in accordance with Section 1009 with respect to the
Securities of any Series, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of any Holder of any
Security, or change any Place of Payment where, or the Currency in which,
any Security or any premium or the interest thereon is payable, or modify
Section 508, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. 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 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly after the
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security so affected, pursuant to Section 106,
setting forth in general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of (and premium, if any),
including Redemption Price and Repayment Price, and interest on the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. The Company will maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Securities of any series
for such purposes. The Company will give prompt written notice to the Trustee of
any such designation or rescission and of any change in the location of any such
other office or agency. Unless otherwise specified with respect to any
Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the Borough of Manhattan, The City of New York, and initially
appoints the Trustee at its New York office as Paying Agent in such Place of
Payment and as its agent to receive all presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Currency other than Dollars or (ii) may be payable in a Currency other than
Dollars, or so long as it is required under any other provision of the
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of (and
premium, if any), including Redemption Price and Repayment Price, or interest on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to or on each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum (in the Currency described in the preceding paragraph)
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent (other than the Trustee) for any
series of Securities to execute and deliver to the Trustee an instrument in
which such Paying
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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 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 Company (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 on the Securities
of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as provided in the Securities of any series, any money deposited
with the Trustee or any Paying Agent, or then held by the Company, in trust for
the payment of the principal of (and premium, if any) or interest on any
Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture. For purposes of this Section
1004, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1005. CORPORATE EXISTENCE. Subject to Article Eight, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its
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corporate existence and its rights (charter and statutory) and franchises;
PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof is not disadvantageous in any
material respect to the Holders.
SECTION 1006. NEGATIVE PLEDGE. The Company will not, and will not permit
any Subsidiary to, create any Security Interest on any of its property or assets
(including Capital Stock), whether owned on the date hereof or hereafter
acquired, to secure any Debt unless at the same time it shall secure equally and
ratably with such Debt all Securities then Outstanding by the same instrument or
by other instrument for so long as such obligation is secured; PROVIDED that
this covenant shall not hinder or prevent the sale of any property or assets of
the Company (except in the case of a sale in connection with a transaction
prohibited by Section 1007) or hinder or prevent:
(i) Security Interests existing on the date of initial issuance of the
Securities;
(ii) Security Interests on any property, Capital Stock, or other
assets existing at the time of acquisition thereof by the Company or any
Subsidiary (which may include property previously leased by the Company or
any Subsidiary and leasehold interests thereon, provided that the lease
terminates prior to the acquisition);
(iii) Security Interests on property, Capital Stock, or other assets
of a corporation or other entity existing at the time such corporation or
other entity is merged into or consolidated with the Company or any
Subsidiary or at the time of a sale, lease or other disposition of the
properties of a corporation or other entity as an entirety or substantially
as an entirety to the Company or any Subsidiary;
(iv) Security Interests on property, Capital Stock or other assets
("SECURED PROJECTS") acquired, constructed or improved by the Company or
any Subsidiary after the initial issuance of the Securities which are
created or assumed contemporaneously with, or within 270 days after such
acquisition (or, in the case of property or other assets constructed or
improved, within 270 days after the completion or commencement of
commercial operation of such property or other assets, whichever is later)
to secure or provide for the payment of any part of the purchase price of
such property, Capital Stock, or other assets or cost of such construction
or improvement; PROVIDED that if a commitment to so finance such a payment
is obtained prior to or within such 270 day period and the related Security
Interest is created within 90 days after the expiration of the 270 day
period, the applicable Security Interest shall be deemed to be included in
this clause (iv); and PROVIDED FURTHER that such Security Interests may
also extend to: (a) any Necessary Assets PROVIDED that the instrument
granting such Security Interests does not materially impair the continued
operation of each Significant Facility requiring or dependent on such
Necessary Assets notwithstanding a default under such instrument or
acceleration of the obligations secured thereby; (b) any unimproved real
property theretofore owned by the Company or any Subsidiary, on which the
property so constructed, or the improvement is located; and (c) contract
rights (including revenue therefrom) of the Company or any Subsidiary
directly related to such Secured Projects;
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(v) Security Interests securing Debt issued pursuant to a receivables
facility or similar credit arrangement which provides for Debt issued by
the Company or any Subsidiary thereunder and interest thereon and related
obligations to be secured by a pledge of receivables of the Company or any
Subsidiary in accordance with an indenture or other agreement and which
further provides that the holder of interests in the trust created pursuant
to such indenture or other agreement is to be entitled to a first call on
the proceeds of any enforcement of the security under the indenture or
other agreement that are attributable to receivables of the Company or any
Subsidiary;
(vi) the granting of any security, whether by way of letter of credit,
surety bond or otherwise, which is posted or granted pursuant to a court
order or agreement with a third Person in the context of a dispute by the
Company or any Subsidiary of the claims by a third Person purportedly
arising in the ordinary course of business of, or incident to current
construction by, the Company or any Subsidiary;
(vii) the deposit of cash, letters of credit, surety bonds, labor and
material bonds, or any other security in connection with contracts (other
than for the payment of Debt) or tenders in the ordinary course of business
or to secure margins accounts in the ordinary course of business, workmen's
compensation, surety or appeal bonds, costs of litigation required by law,
public and statutory obligations, liens or claims whether arising at common
law, equity or pursuant to statute whether incident to current construction
or otherwise, including but not limited to mechanics', workmen's, carriers'
and other similar liens;
(viii) Security Interests securing Debt or other obligations of a
Subsidiary owing to the Company or a wholly owned Subsidiary;
(ix) Security Interests on or other conveyances of property or other
assets owned by the Company or any Subsidiary in favor of the Government of
Canada or any Province or Territory thereof or the United States of America
or any State, territory or possession thereof (or the District of
Columbia), or any department, agency, instrumentality or political
subdivision of the Government of Canada or any Province or Territory
thereof or the United States of America or any State, territory or
possession thereof (or the District of Columbia), to secure partial,
progress, advance or other payments pursuant to any contract or statute or
to secure any Debt incurred for the purpose of financing all or any part of
the purchase price or the cost of construction or improvement of the
property subject to such Security Interests; or
(x) any extension, renewal or replacement (or successive extensions,
renewals or replacements), in whole or in part, of any Security Interest
referred to in the foregoing clauses (i) to (ix), inclusive, without
increase of the principal of the Debt secured thereby; PROVIDED, HOWEVER,
that such extension, renewal or replacement shall be limited to all or a
part of the property or other assets which secured the Security Interest so
extended, renewed or replaced (plus improvements on such property or other
assets); and PROVIDED, FURTHER, that any Security Interest permitted by any
of the forgoing clauses (i) to (ix), inclusive, of this Section 1006 shall
not extend to or cover any property of the Company
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or any Subsidiary other than the property specified in such clauses and
improvements thereto.
Notwithstanding the foregoing provisions or the provisions of Section 1007,
the Company or any Subsidiary may issue, incur, create, assume or guarantee Debt
secured by Security Interests which would otherwise be subject to the foregoing
restrictions and enter into any Sale/Leaseback Transaction that would otherwise
be prohibited by Section 1007 in an aggregate amount which, together with all
other outstanding Debt of the Company and each Subsidiary or any of them which
(if originally issued, incurred, created, assumed or guaranteed at such time)
would otherwise be subject to the foregoing restrictions under any of clauses
(i) through (x) above and the aggregate Attributable Debt of all such
Sale/Leaseback Transactions of the Company and each Subsidiary or any of them at
any one time outstanding together, does not at the time exceed 10% of
Consolidated Net Tangible Assets of the Company.
SECTION 1007. LIMITATION ON SALE/LEASEBACK TRANSACTIONS. The Company shall
not, and shall not permit any Subsidiary to, enter into any Sale/Leaseback
Transaction with respect to any property unless (i) the Company or such
Subsidiary would be entitled to create Security Interests on such property
securing such Attributable Debt without equally and ratably securing the
Indenture Securities pursuant to the covenant described under Section 1006 or
(ii) the net cash proceeds received by the Company or any Subsidiary in
connection with such Sale/Leaseback Transaction are at least equal to the fair
value (as determined by the board of directors of the Company or, as the case
may be, such Subsidiary) of such property, and the Company or such Subsidiary
shall apply or cause to be applied, in the case of a sale or transfer for cash,
an amount equal to the net proceeds thereof and, in the case of a sale or
transfer otherwise than for cash, an amount equal to the fair market value of
the property so leased, to the retirement, within 180 days after the effective
date of such Sale/Leaseback Transaction, of the Securities subject to the
provisions of Article Eleven or Debt of the Company ranking on a parity with the
Securities and owing to a Person other than the Company or any Affiliate of the
Company or to the construction or improvement of real property or personal
property used in the ordinary course of business. These restrictions will not
apply to (a) transactions providing for a lease for a term, including any
renewal thereof, of not more than three years; (b) transactions between the
Company and a Subsidiary or between Subsidiaries; and (c) transactions between
the Company and a joint venture, partnership or other association or affiliation
in which the Company has at least a 50% interest, directly or indirectly entered
into for operational or strategic reasons and not for financing reasons;
PROVIDED, HOWEVER, that the aggregate Attributable Debt of all Sale/Leaseback
Transactions of the Company and each Subsidiary or any of them incurred pursuant
to this clause (c) does not any at time in the aggregate exceed 5% of
Consolidated Net Tangible Assets of the Company as of the most recently ended
quarter of the Company for which financial statements of the Company have been
provided (or were required to have been provided) to the Holders of the
Securities.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 803, 1006 or 1007 if the Holders of at least a majority in principal
amount of all Outstanding Securities affected by such term, provision or
covenant 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
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such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
SECTION 1009. TAX GROSS-UP AMOUNTS. Payments made by the Company under or
with respect to the Securities will be made free and clear of and without
withholding or deduction for or on account of any present or future tax, duty,
levy, interest, assessment or other governmental charge imposed or levied by or
on behalf of the Government of Canada or any province or territory thereof or by
any authority or agency therein or thereof having power to tax ("TAXES"), unless
the Company is required to withhold or deduct Taxes under Canadian law or by the
interpretation or administration thereof. If, after the date of this Indenture,
the Company 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 of any
series, the Company will pay to each Holder of Securities such additional
amounts ("TAX GROSS-UP AMOUNTS") as may be necessary so that the net amount
received by such Holder (including the Tax Gross-Up Amounts) after such
withholding or deduction (including any deduction or withholding in respect of
the Tax Gross-Up Amounts) will not be less than the amount such Holder would
have received if such Taxes had not been withheld or deducted; PROVIDED that no
Tax Gross-Up Amounts will be payable with respect to a payment made to a Holder,
to the extent that any of the following apply (to the extent that any of the
following apply, such Holder shall be referred to as an "EXCLUDED HOLDER"):
(a) with which the Company does not deal at arm's length (within the
meaning of the Income Tax Act (Canada)) at the time of making such payment,
or
(b) which is subject to such Taxes by reason of its being connected
with Canada or any province or territory thereof otherwise than by the mere
holding of the Securities or the receipt of payments thereunder, or
(c) which fails to comply with any certification, identification,
information, documentation or other reporting requirement if compliance is
required by applicable law or regulation as a condition to exemption from
or a reduction in the rate of deduction or withholding of Taxes, but only
to the extent the Holder is legally entitled to comply with such
requirements.
The Company will also:
(a) make such withholding or deduction, and
(b) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable law.
If the Company is required to withhold or deduct any such amounts on
account of Taxes, the Company will furnish to Holders outstanding on the date of
such payment of Taxes copies of the Information Return NR4B and any other
information returns applicable in Canada within 30 days of the date that each
such return is required to be filed with the Canadian taxing authorities. The
Company will indemnify and hold harmless each holder of Securities that are
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outstanding on the date of the required payment (other than an Excluded Holder)
and upon written request reimburse each such holder for the amount of:
(a) any Taxes levied or imposed and paid by such holder as a result of
payments made under or with respect to the Securities (to the extent not
covered by Tax Gross-Up Amounts),
(b) any liability (including penalties, interest and expense) of such
holder arising therefrom or with respect thereto, and
(c) any Taxes levied or imposed on such holder with respect to any
reimbursement under clause (a) or (b) above.
If the Company becomes obligated to pay Tax Gross-Up Amounts with respect
to such payment, then at least 30 days prior to each date on which any payment
under or with respect to the Securities is due and payable, the Company will
deliver to the Trustee an Officers' Certificate stating the fact that such Tax
Gross-Up Amounts will be payable, the amounts so payable, and setting forth such
other information as is necessary to enable the Trustee to pay such Tax Gross-Up
Amounts to the Holders on the payment date. Whenever in this Indenture or any
Security there is mentioned, in any context:
(a) the payment of principal (and premium, if any),
(b) purchase prices in connection with a repurchase of Securities,
(c) interest and Additional Interest, if any, or
(d) any other amount payable on or with respect to any of the
Securities,
such mention shall be deemed to include mention of the payment of Tax Gross-Up
Amounts provided for in this section to the extent that, in such context, Tax
Gross-Up Amounts are, were or would be payable in respect thereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
the terms of such Securities and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article
Eleven.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed and
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shall deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 1103. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less
than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions of the principal of Securities of such series; PROVIDED, HOWEVER, that
no such partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than the minimum authorized denomination for
Securities of such series established pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Except as otherwise specified as
contemplated by Section 301, notice of redemption shall be given in the manner
provided in Section 106 not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106) will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
will cease to accrue on and after said date,
(5) the place or places where such Securities maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price,
and
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(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. Prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Redemption
Price of, and accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such Series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest bearing, cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable (but without interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any 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 the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Security which is to be
redeemed only in part (pursuant to the provisions of this Article or of Article
Twelve) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and deliver to
the Holder of such Security without service charge, a new Security or Securities
of the same series, 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.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. Retirements of Securities of any
series pursuant to any sinking fund shall be made in accordance with the terms
of such Securities and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "MANDATORY SINKING FUND
PAYMENT", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "OPTIONAL SINKING
FUND PAYMENT". If provided for by the terms of Securities of any series, the
cash amount of any mandatory sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any mandatory
sinking fund payment with respect to any Securities of a series in cash, the
Company may at its option (1) deliver to the Trustee Outstanding Securities of
that series theretofore purchased or otherwise acquired by the Company, and/or
(2) receive credit for the principal amount of Securities of such series which
have been previously delivered to the Trustee by the Company or for Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of the same series required to be made pursuant
to the terms of such Securities as provided for by the terms of such series;
PROVIDED, HOWEVER, that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for any series of Securities, the
Company 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 301 for the
Securities of such Series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding
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sinking fund payment date for that series shall be paid entirely in cash and
shall be sufficient to redeem the principal amount of such Securities subject to
a mandatory sinking fund payment without the option to deliver or credit
Securities as provided in Section 1202 and without the right to make any
optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
Prior to any sinking fund payment date, the Company shall pay to the
Trustee or a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) in cash a sum equal to
any interest that will accrue to the date fixed for redemption of Securities or
portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund for any
series of Securities, if at any time the amount of cash to be paid into such
sinking fund on the next succeeding sinking fund payment date, together with any
unused balance of any preceding sinking fund payment or payments for such
series, does not exceed in the aggregate $100,000, the Trustee, unless requested
by the Company, shall not give the notice of the next succeeding sinking fund
payment date for redemption of Securities of such series. Instead, any such
unused balance of moneys deposited in such sinking fund shall be added to the
sinking fund payment for such series to be made in cash on the next succeeding
sinking fund payment date or, at the request of the Company, shall be applied at
any time or from time to time to the purchase of Securities of such series, by
public or private purchase, in the open market or otherwise, at a purchase price
for such Securities (excluding accrued interest and brokerage commissions, for
which the Trustee or any paying agent will be reimbursed by the Company) not in
excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at a price equal
to the principal amount thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such Securities.
The Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in
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the Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal (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 on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. To be repaid at the option of
the Holder, any Security so providing for such repayment, with the "Option to
Elect Repayment" form on the reverse of such Security duly completed by the
Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places or which the Company shall
from time to time notify the Holders of such Securities) not earlier than 45
days nor later than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of the
series of which such Security to be repaid is a part. Except as otherwise may be
provided by the terms of any Security providing for repayment at the option of
the Holder thereof, exercise of the repayment option by the Holder shall be
irrevocable unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest,
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 Company, together with
accrued interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that
installments of interest, if any, whose Stated Maturity is on or prior to the
Repayment Date shall be payable (but without interest thereon, unless the
Company shall default in the payment thereof) to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If 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
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rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any Security
which is to be repaid in part only, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new 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 FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for Securities of
any series, the provisions of this Article shall be applicable to the
Securities, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of or within a series, elect to have either
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to the
Outstanding Securities of or within a series upon compliance with the conditions
set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Company 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 1404 are satisfied (hereinafter, "DEFEASANCE").
For this purpose, such defeasance means that the Company 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 1405 and the other Sections of this Indenture referred to in
(A) and (B) below, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest (and Additional Interest, if
any) on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002, 1003
and 1009 and with respect to the payment of additional amounts, if any, if
provided for pursuant to Section 301, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Fourteen. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section 1402 notwithstanding the prior exercise of its option under Section
1403 with respect to such Securities.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Company shall be released from its obligations under Sections 803,
1006 and 1007 and, if specified pursuant to Section 301, its obligations under
any other covenant, with respect to such
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Outstanding Securities on and after the date the conditions set forth in Section
1404 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and such Securities
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 803 or 1006, or such
other covenant, 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 Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such Section or such other covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of reference in any such Section or such other
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a default or an Event of Default under
Section 501(4) or Section 501(8) 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 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of either Section 1402 or
Section 1403 to any Outstanding Securities of or within a series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 608 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (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 (including any premium) and interest,
if any (and Additional 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 public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium, if any),
including Redemption Price and Repayment Price, and interest on such
Outstanding Securities on the Stated Maturity of such principal or
installment of principal or interest (and Additional 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.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (5) and (6) of Section 501 are concerned, at any time during the
period ending on the 91st day after the
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date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(3) The Company 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 to be
satisfied until the expiration of such period).
(4) 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 Company is a party
or by which it is bound.
(5) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
stating that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since the date of
execution of this Indenture, there has been a change in the applicable
United States 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 United
States Federal income tax purposes as a result of such defeasance and will
be subject to United States Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such
defeasance had not occurred.
(6) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States to
the effect that the Holders of such Outstanding Securities of such series
will not recognize income, gain or loss for United States Federal income
tax purposes as a result of such covenant defeasance and will be subject to
United States 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.
(7) The Company shall have delivered to the Trustee an Opinion of
Counsel in Canada to the effect that (A) Holders of such Outstanding
Securities will not recognize income, gain or loss for Canadian federal or
provincial income tax or other tax purposes as a result of such defeasance
or covenant defeasance, as applicable, and will be subject to Canadian
federal and 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 if such
defeasance or covenant defeasance, as applicable, had not occurred.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit made by the Company pursuant to its
election under Section 1402 or 1403 was not made by the Company with the
intent of preferring the Holders over other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding creditors
of the Company or others.
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(9) The Company 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 1402
or the covenant defeasance under Section 1403 (as the case may be) have
been complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to paragraph (1) above and the related
exercise of the Company's option under Section 1402 or Section 1403 (as the
case may be), registration is not required under the Investment Company Act
of 1940, as amended, by the Company, with respect to the trust funds
representing such deposit, or by the trustee for such trust funds or (ii)
all necessary registrations under said Act have been effected.
(10) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations in connection
therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of such series shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company 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 (and
Additional Interest, if any), but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(1) has been made, (a) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 312(b) or the terms of such Security to
receive payment in a Currency other than that in which the deposit pursuant to
Section 1404(1) has been made in respect of such Security, or (b) a Conversion
Event occurs as contemplated in Section 312(d) or 312(e) or by the terms of any
Security in respect of which the deposit pursuant to Section 1404(1) has been
made, the indebtedness represented by such Security shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (premium, if any, on), 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 second
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.
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The Company shall pay and indemnify the Trustee on an after-tax basis
against any tax, fee or other charge imposed on or assessed against the money or
Government Obligations deposited pursuant to Section 1404 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding
Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants 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.
ARTICLE FIFTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES
SECTION 1501. EXEMPTION FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers, directors or employees, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities.
* * * *
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.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
NOVA CHEMICALS CORPORATION
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President,
Finance and Treasurer
[Seal]
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President, Legal
and Corporate Secretary
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
[Seal]
Attest: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
[FORM OF INITIAL SECURITY]
NOVA CHEMICALS CORPORATION
CUSIP No. $
▇▇.
▇ ▇/▇% ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ CHEMICALS CORPORATION, a Delaware corporation, as issuer (the
"COMPANY"), for value received, promises to pay to CEDE & CO. or registered
assigns the principal sum of ( ) on January 15, 2012.
Interest Payment Dates: January 15 and July 15.
Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by one of its duly authorized officers.
NOVA CHEMICALS CORPORATION
By:
----------------------------
Name:
Title:
Certificate of Authentication
This is one of the 6 1/2% Senior Notes due 2012 referred to
in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:
----------------------------
Name:
Title:
Dated:
B-2
[FORM OF REVERSE OF SECURITY]
NOVA CHEMICALS CORPORATION
6 1/2% SENIOR NOTES DUE 2012
1. INTEREST. NOVA CHEMICALS CORPORATION, a Delaware corporation, as issuer
(the "COMPANY"), promises to pay, until the principal hereof is paid or made
available for payment, interest on the principal amount set forth on the face
hereof at a rate of 6 1/2 % per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including January 13, 2004 to but excluding the
date on which interest is paid. Interest shall be payable in arrears on each
January 15 and July 15 of each year, commencing July 15, 2004. Interest will be
computed on the basis of a 360-day year of twelve 30-day months and actual days
elapsed. The Company shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at the rate borne by the
Securities.
2. METHOD OF PAYMENT. The Company will pay interest hereon (except
Defaulted Interest) to the Persons who are Holders at the close of business on
the January 1 or July 1 next preceding the interest payment date (whether or not
a Business Day). Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States of America that at the time of payment is legal tender for payment
of public and private debts. Interest may be paid by check mailed to the Holder
entitled thereto at the address indicated on the register maintained by the
Registrar for the Securities.
3. PAYING AGENT AND REGISTRAR. Initially, U.S. Bank National Association
(the "TRUSTEE") will act as a Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice. Neither the Company nor any of its
Affiliates may act as Paying Agent or Registrar.
4. INDENTURE. The Company issued the Securities under an Indenture dated as
of January 13, 2004 (the "INDENTURE") among the Company and the Trustee. This is
one of an issue of Securities of the Company issued, or to be issued, under the
Indenture. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb), as amended from time to time. The Securities
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of them. Capitalized and certain other terms used
herein and not otherwise defined have the meanings set forth in the Indenture.
5. REDEMPTION. (a) From and after the Issue Date, the Securities will be
redeemable, in whole at any time or in part from time to time, at the option of
the Company, at a Redemption Price equal to the sum of:
(i) 100% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the Redemption Date, plus
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(ii) the Make Whole Amount.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by a Reference Treasury Dealer as having a maturity comparable to the
Stated Maturity of the principal of the Securities that would be utilized at the
time of selection and in accordance with customary financial practices in
pricing new issues of corporate debt securities of comparable maturity to the
remaining life of the Securities.
"COMPARABLE TREASURY PRICE" means, with respect to any Redemption Date,
o the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount)
on the third business day preceding such date of redemption or
purchase, as set forth in the daily statistical release (or any
successor release) published by the Federal Reserve Bank of New York
and designated "Composite 3:30 p.m. Quotations for U.S. Government
Securities"; or
o if such release (or any successor release) is not published or does
not contain such prices on such business day, the average of the
Reference Treasury Dealer Quotations.
"MAKE WHOLE AMOUNT" means, with respect to any Security, the greater of (a)
1.0% of the principal amount of such Security, and (b) the excess, if any, of
(1) the amount equal to the sum of the present values of the remaining scheduled
payments of principal of the Securities to be redeemed and the scheduled
payments of interest thereon to originally scheduled maturity, discounted to the
Redemption Date (assuming a 360-day year consisting of twelve 30-day months) at
the Special Adjusted Treasury Rate from the dates on which such principal and
interest would have been payable over (2) the principal amount of Securities
being redeemed.
"REFERENCE TREASURY DEALER" means each of (1) Citigroup Global Markets Inc.
or any successor (or, if the foregoing shall not be a primary U.S. Government
securities dealer in New York City (a "PRIMARY TREASURY DEALER"), the Company
shall substitute therefor another Primary Treasury Dealer and (2) any Primary
Treasury Dealer selected by the Company.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to any Reference
Treasury Dealer on any Redemption Date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the
third business day preceding such Redemption Date.
"SPECIAL ADJUSTED TREASURY RATE" means, with respect to any Redemption
Date, the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price equal to the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such date of redemption or purchase, plus 0.50%.
B-4
(b) The Company may at any time redeem in whole but not in part the
outstanding Securities at a Redemption Price of 100% of the principal amount
thereof plus accrued interest (if any) to the date of redemption if it has
become or would become obligated (including on the future enactment of a
proposed change) to pay any Tax Gross-Up Amounts in respect of the Securities as
a result of any change from January 8, 2004 (including any announced prospective
change) in any laws or regulations of Canada or any political subdivision or
taxing authority thereof, or any change from January 8, 2004 to any
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency, taxing authority or regulatory authority
(including the enactment of any legislation or the publication of any judicial
decision or regulatory or administrative determination) of Canada or any
political subdivision or taxing authority thereof.
6. NOTICE OF REDEMPTION. Notices of redemption shall be mailed by first
class mail at least 30 but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at its registered address. Notices of
redemption may not be conditional. If any Security is to be redeemed in part
only, the notice of redemption that relates to such Security shall state the
portion of the principal amount thereof to be redeemed.
7. SINKING FUND. There will be no mandatory sinking fund payment for the
Securities.
8. REGISTRATION RIGHTS. (a) Pursuant to a Registration Rights Agreement
among the Company and the Initial Purchasers named therein (the "REGISTRATION
RIGHTS AGREEMENT"), the Company will be obligated to consummate an exchange
offer pursuant to which the Holder of this Security shall have the right to
exchange this Security for Securities which have been registered under the
Securities Act, in like principal amount and having substantially identical
terms as the Securities.
(b) If (i) on or prior to the 90th day following the Issue Date, neither
the Exchange Offer Registration Statement nor the Shelf Registration Statement
has been filed with the SEC, (ii) on or prior to the 180th day following the
date of original issuance of the Securities, neither the Exchange Offer
Registration Statement nor the Shelf Registration Statement has been declared
effective, (iii) on or prior to the 30th business day after the Exchange Offer
Registration Statement is declared effective, the Registered Exchange Offer has
not been consummated, or (iv) after either the Exchange Offer Registration
Statement or the Shelf Registration Statement has been declared effective, such
Registration Statement thereafter ceases to be effective or usable (subject to
certain exceptions) in connection with resales of Securities or Exchange
Securities in accordance with and during the periods specified in the
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv), a "REGISTRATION DEFAULT"), interest ("ADDITIONAL INTEREST") will
accrue on the principal amount of the Securities and the Exchange Securities (in
addition to the stated interest on the Securities and the Exchange Securities)
from and including the date on which any such Registration Default shall occur
to but excluding the date on which all registration defaults have been cured.
Additional Interest will accrue at a rate of 0.25% per annum during the 90-day
period immediately following the occurrence of such Registration Default and
shall increase by 0.25% per annum at the end of each subsequent 90-day period,
but in no event shall such rate exceed 1.00% per annum. Terms
B-5
used in this paragraph and not defined herein or in the Indenture have the
meanings given to such terms in the Registration Rights Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities or portion of a Security selected for
redemption, or register the transfer of or exchange any Securities for a period
of 15 days before a mailing of notice of redemption.
10. PERSONS DEEMED OWNERS. The registered Holder of this Security may be
treated as the owner of this Security for all purposes.
11. UNCLAIMED MONEY. If money for the payment of principal or interest
remains unclaimed for two years, the Trustee will pay the money back to the
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
12. AMENDMENT, SUPPLEMENT, WAIVER, ETC. The Company and the Trustee (if a
party thereto) may, without the consent of the Holders of any outstanding
Securities, amend, waive or supplement the Indenture or the Securities for
certain specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies, maintaining the qualification of the Indenture under
the TIA, providing for the assumption by a successor to the Company of its
obligations under the Indenture and making any change that does not materially
and adversely affect the rights of any Holder. Other amendments and
modifications of the Indenture or the Securities may be made by the Company and
the Trustee with the consent of the Holders of not less than a majority of the
aggregate principal amount of the outstanding Securities, subject to certain
exceptions requiring the consent of the Holders of the particular Securities to
be affected.
13. RESTRICTIVE COVENANTS. The Indenture imposes certain limitations on the
ability of the Company and its Subsidiaries to, among other things, create
liens, enter into sale and leaseback transactions or consolidate, merge or sell
all or substantially all of the assets of the Company and its Subsidiaries and
requires the Company to provide reports to Holders of the Securities. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to Section 1004 of the Indenture, the Company must annually report to
the Trustee on compliance with such limitations.
14. SUCCESSOR CORPORATION. When a successor corporation assumes all the
obligations of its predecessor under the Securities and the Indenture and the
transaction complies with the terms of Article Eight of the Indenture, the
predecessor corporation will, except as provided in Article Eight, be released
from those obligations.
15. DEFAULTS AND REMEDIES. Events of Default are set forth in the
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default with respect to Securities of this series occurs and is continuing,
then, and in each and every such case, either the Trustee, by
B-6
notice in writing to the Company, or the Holders of not less than 25% of the
principal amount of the Securities of this series then outstanding, by notice in
writing to the Company and the Trustee, may, and the Trustee at the request of
such Holders shall, declare due and payable, if not already due and payable, the
principal of and any accrued and unpaid interest on all of the Securities of
this series; and upon any such declaration all such amounts upon such Securities
shall become and be immediately due and payable, anything in the Indenture or in
the Securities to the contrary notwithstanding. If an Event of Default specified
in clause (5) or (6) of Section 501 of the Indenture occurs with respect to the
Company, then the principal of and any accrued and unpaid interest on all of the
Securities shall immediately become due and payable without any declaration or
other act on the part of the Trustee or any Holder. Holders may not enforce the
Indenture or the Securities except as provided in the Indenture. The Trustee may
require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the then outstanding Securities of this series may direct the Trustee
in its exercise of any trust or power.
16. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
17. NO RECOURSE AGAINST OTHERS. No director, officer, employee,
incorporator, member of the Board of Directors or holder of Capital Stock of the
Company, as such, will have any liability for any obligations of the Company
under this Security or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations. Each Holder of this Security by accepting
this Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of this Security.
18. DISCHARGE. The Company's obligations pursuant to the Indenture will be
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Securities or upon
the irrevocable deposit with the Trustee of United States dollars or U.S.
Government Obligations sufficient to pay when due principal of and interest on
the Securities to maturity or redemption, as the case may be.
19. NO SUBSIDIARY GUARANTEES. The Securities will not be guaranteed by any
Subsidiary.
20. AUTHENTICATION. This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this Security.
21. GOVERNING LAW. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Trustee and the Company
agree to submit to the non-exclusive jurisdiction of the courts of the State of
New York and of the United States located in New York County in any action or
proceeding arising out of or relating to the Indenture or the Securities.
22. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the
B-7
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
23. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Securities and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
NOVA Chemicals Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
Old Federal Reserve Bank Building
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
B-8
ASSIGNMENT
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
------------------ -----------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
--------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-9
EXHIBIT B
[FORM OF LEGEND FOR 144A SECURITIES AND OTHER SECURITIES
THAT ARE RESTRICTED SECURITIES]
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN
THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN,
THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS ACQUIRING THIS
SECURITY PURSUANT TO ANOTHER EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OF REGULATION S UNDER THE SECURITIES ACT, (D)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY), OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY OR
AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE
THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE GOVERNING THIS SECURITY CONTAINS A PROVISION REQUIRING THE TRUSTEE
TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE
FOREGOING.
B-10
[FORM OF ASSIGNMENT FOR 144A SECURITIES AND
OTHER SECURITIES THAT ARE RESTRICTED SECURITIES]
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
------------------ ----------------------------------
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee:
----------------------------------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
B-11
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule 144A
under the Securities Act, and, accordingly, the transferor hereby further
certifies that the beneficial interest or certificated Security is being
transferred to a Person that the transferor reasonably believed and believes is
purchasing the beneficial interest or certificated Security for its own account,
or for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such transfer is in compliance with any
applicable securities laws of any state of the United States. Upon consummation
of the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or certificated Security will be subject to the
restrictions on transfer enumerated on the Rule 144A Securities and/or the
certificated Security and in the Indenture and the Securities Act.
Dated:
--------------------- ----------------------------------------------
NOTICE: To be executed by an executive officer
B-12
EXHIBIT C
[FORM OF LEGEND FOR REGULATION S SECURITY]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND, UNLESS SO REGISTERED, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS UNLESS REGISTERED UNDER THE ACT OR EXCEPT PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE ACT.
C-1
[FORM OF ASSIGNMENT FOR REGULATION S SECURITY]
I or we assign and transfer this Security to:
-------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Regulation S thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with
(a) above and documents are being furnished which comply with the conditions of
transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Sections 2.16 and 2.17 of the Indenture
shall have been satisfied.
Date: Your Signature:
------------------ ----------------------------------
(Sign exactly as your name appears
on the face of this Security)
Signature Guarantee:
----------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
C-2
TO BE COMPLETED BY TRANSFEROR IF (a) ABOVE IS CHECKED
The transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and, accordingly, the transferor hereby
further certifies that (i) the transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the transferee
was outside the United States or such transferor and any Person acting on its
behalf reasonably believed and believes that the transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the restricted period under Regulation S, the transfer is not
being made to a U.S. Person or for the account or benefit of a U.S. Person
(other than an initial purchaser). Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or certificated Security will be subject to the restrictions on transfer
enumerated on the Regulation S Securities and/or the certificated Security and
in the Indenture and the Securities Act.
Dated:
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NOTICE: To be executed by an executive officer
C-3
EXHIBIT D
[FORM OF LEGEND FOR GLOBAL SECURITY]
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (A NEW YORK CORPORATION) ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR 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 PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THE SECURITIES
SHALL NOT TRADE THE SECURITIES IN CANADA BEFORE MAY 14, 2004
D-1
EXHIBIT E
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
US Bank National Association
Corporate Trust Administration
▇▇▇▇▇▇▇ Square
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Re: NOVA Chemicals Corporation, a Delaware corporation, as issuer
(the "Ccompany"), 6 1/2% Senior Nnotes due 2012 (the "Securities")
Dear Sirs:
In connection with our proposed sale of $__________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "SECURITIES ACT"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a U.S. person or to a
person in the United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither we nor
any person acting on our behalf knows that the transaction has been
prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 904(a) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or
E-1
official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
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E-2