TRANSALTA CORPORATION
AS ISSUER
AND
THE BANK OF NEW YORK
AS TRUSTEE
================================
INDENTURE
DATED AS OF JUNE 25, 2002
================================
TRANSALTA CORPORATION
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of June 25, 2002
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) .........................................................6.7
(a)(2) .........................................................6.7
(b) .........................................................6.8
(c) .........................................................N.A.
ss.311(a) .........................................................5.1.
(b) .........................................................5.1.
(c) .........................................................N.A.
ss.312(a) .........................................................7.1.
(b) .........................................................7.2.
(c) .........................................................7.1
ss.313(a) .........................................................7.2.
(b)(1) .........................................................7.2.
(b)(2) .........................................................7.2.
(c) .........................................................7.5, 6.1.
(d) .........................................................7.3.
ss.314(a) .........................................................7.5
(a)(4) .........................................................10.4
(b) .........................................................8.3.
(c)(1) .........................................................1.2
(c)(2) .........................................................1.2
(d) .........................................................8.3.
(e) .........................................................1.2
(f) .........................................................N.A.
ss. 315(a) .........................................................6.2.
(b), (c), (d) .........................................................6.1
ss.316(a)(last sentence) .........................................................1.1("Outstanding")
(a)(1)(A) .........................................................5.2, 5.12
(a)(1)(B) .........................................................5.13
(a)(2) .........................................................N.A.
(b) .........................................................5.8
(c) .........................................................1.4(e)
ss.317(a)(1) .........................................................5.3
(a)(2) .........................................................5.4
(b) .........................................................10.3
ss.318(a) .........................................................1.11
(b) .........................................................N.A.
(c) .........................................................N.A.
N.A. means Not Applicable
---------------------
* Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the
Indenture.
TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
Section 1.1 Definitions 1
Section 1.2 Compliance Certificates and Opinions 15
Section 1.3 Form of Documents Delivered to Trustee 15
Section 1.4 Acts of Holders 16
Section 1.5 Notices, etc., to Trustee and Corporation 18
Section 1.6 Notice to Holders; Waiver 18
Section 1.7 Effect of Headings and Table of Contents 19
Section 1.8 Successors and Assigns 19
Section 1.9 Separability Clause 19
Section 1.10 Benefits of Indenture 19
Section 1.11 Governing Law 19
Section 1.12 Legal Holiday 20
Section 1.13 Agent for Service Submission to Jurisdiction;
Waiver of Immunities 20
Section 1.14 Conversion of Currency 21
Section 1.15 Currency Equivalent 22
Section 1.16 No Recourse Against Others 22
Section 1.17 Multiple Originals 22
Section 1.18 Waiver of Jury Trial 22
Section 1.19 CUSIP Numbers 23
ARTICLE 2. SECURITY FORMS 23
Section 2.1 Forms Generally 23
Section 2.2 Form of Trustee's Certificate of Authentication 23
Section 2.3 Securities Issuable in Global Form 24
ARTICLE 3. THE SECURITIES 25
Section 3.1 Amount Unlimited; Issuable in Series 25
Section 3.2 Denominations 29
Section 3.3 Execution, Authentication, Delivery and Dating 29
Section 3.4 Temporary Securities 31
Section 3.5 Registration, Registration of Transfer and Exchange 33
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities 37
Section 3.7 Payment of Principal and Interest; Interest Rights
Preserved; Optional Interest Reset 39
Section 3.8 Optional Extension of Stated Maturity 41
Section 3.9 Persons Deemed Owners 42
Section 3.10 Cancellation 43
Section 3.11 Computation of Interest 43
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Section 3.12 Currency and Manner of Payments in Respect of
Securities 44
Section 3.13 Appointment and Resignation of Successor Exchange
Rate Agent 47
ARTICLE 4. SATISFACTION AND DISCHARGE 47
Section 4.1 Satisfaction and Discharge of Indenture 48
Section 4.2 Application of Trust Money 49
ARTICLE 5. REMEDIES 49
Section 5.1 Events of Default 49
Section 5.2 Acceleration of Maturity; Rescission and Annulment 51
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee 52
Section 5.4 Trustee May File Proofs of Claim 53
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities 53
Section 5.6 Application of Money Collected 54
Section 5.7 Limitation on Suits 54
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest 55
Section 5.9 Restoration of Rights and Remedies 55
Section 5.10 Rights and Remedies Cumulative 55
Section 5.11 Delay or Omission Not Waiver 55
Section 5.12 Control by Holders 56
Section 5.13 Waiver of Past Defaults 56
Section 5.14 Waiver of Stay or Extension Laws 56
ARTICLE 6. THE TRUSTEE 57
Section 6.1 Notice of Defaults 57
Section 6.2 Certain Rights of Trustee 57
Section 6.3 Trustee Not Responsible for Recitals or Issuance
of Securities 58
Section 6.4 May Hold Securities 59
Section 6.5 Money Held in Trust 59
Section 6.6 Compensation and Reimbursement 59
Section 6.7 Corporate Trustee Required; Eligibility 60
Section 6.8 Resignation and Removal; Appointment of Successor 60
Section 6.9 Acceptance of Appointment by Successor 62
Section 6.10 Merger Conversion; Consolidation or Succession
to Business 63
Section 6.11 Appointment of Authenticating Agent 63
ARTICLE 7. HOLDERS' LIST AND REPORTS BY TRUSTEE AND CORPORATION 65
Section 7.1 Corporation to Furnish Trustee Names and Addresses
of Holders 65
Section 7.2 Preservation of List of Names and Addresses
of Holders 65
Section 7.3 Disclosure of Names and Addresses of Holders 65
Section 7.4 Reports by Trustee 66
Section 7.5 Reports by the Corporation 66
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ARTICLE 8. CONSOLIDATION, AMALGAMATION, MERGER, CONVEYANCE,
TRANSFER, OR LEASE 67
Section 8.1 Corporation May Amalgamate or Consolidate, etc.
Only on Certain Terms 67
Section 8.2 Successor Person Substituted 68
Section 8.3 Assignment of Rights 68
Section 8.4 Securities to Be Secured in Certain Events 68
ARTICLE 9. SUPPLEMENTAL INDENTURES 69
Section 9.1 Supplemental Indentures without Consent of Holders 69
Section 9.2 Supplemental Indentures with Consent of Holders 70
Section 9.3 Execution of Supplemental Indentures 71
Section 9.4 Effect of Supplemental Indentures 71
Section 9.5 Conformity with Trust Indenture Act 71
Section 9.6 Reference in Securities to Supplemental Indentures 72
Section 9.7 Notice of Supplemental Indentures 72
ARTICLE 10. COVENANTS 72
Section 10.1 Payment of Principal, Premium, if any, and Interest 72
Section 10.2 Maintenance of Office or Agency 72
Section 10.3 Money for Securities Payments to Be Held in Trust 74
Section 10.4 Statement as to Compliance 75
Section 10.5 Additional Amounts 75
Section 10.6 Payment of Taxes and other Claims 77
Section 10.7 Maintenance of Properties 77
Section 10.8 Corporate Existence 77
Section 10.9 Maintenance of Books and Records 78
Section 10.10 Restriction of Sales and Leaseback Transactions 78
Section 10.11 Insurance 78
Section 10.12 Negative Covenant 78
Section 10.13 Waiver of Certain Covenants 78
ARTICLE 11. REDEMPTION OF SECURITIES 79
Section 11.1 Applicability of Article 79
Section 11.2 Election to Redeem Notice to Trustee 79
Section 11.3 Selection by Trustee of Securities to be Redeemed 79
Section 11.4 Notice of Redemption 80
Section 11.5 Deposit of Redemption Price 81
Section 11.6 Securities Payable on Redemption Date 81
Section 11.7 Securities Redeemed in Part 82
Section 11.8 Tax Redemption 82
ARTICLE 12. SINKING FUNDS 83
Section 12.1 Applicability of Article 83
Section 12.2 Satisfaction of Sinking Fund Payments
with Securities 83
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Section 12.3 Redemption of Securities for Sinkiing Fund 84
ARTICLE 13. REPAYMENT AT OPTION OF HOLDERS 85
Section 13.1 Applicability of Article 85
Section 13.2 Repayment of Securities 85
Section 13.3 Exercise of Option 85
Section 13.4 When Securities Presented for Repayment Become Due
and Payable 86
Section 13.5 Securities Repaid in Part 87
ARTICLE 14. DEFEASANCE AND COVENANT DEFEASANCE 87
Section 14.1 Option to Effect Defeasance or Covenant Defeasance 87
Section 14.2 Defeasance and Discharge 87
Section 14.3 Covenant Defeasance 87
Section 14.4 Conditions to Defeasance or Covenant Defeasance 88
Section 14.5 Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions 90
Section 14.6 Reinstatement 91
ARTICLE 15. MEETINGS OF HOLDERS OF SECURITIES 91
Section 15.1 Purposes for Which Meetings May Be Called 91
Section 15.2 Call, Notice and Place of Meetings 91
Section 15.3 Persons Entitled to vote at Meetings 92
Section 15.4 Quorum; Action 92
Section 15.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings 93
Section 15.6 Counting Votes and Recording Action of Meetings 94
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INDENTURE, dated as of June 25, 2002, between
TRANSALTA
CORPORATION, a Canadian corporation (herein called the "CORPORATION"), having
its principal office at ▇▇▇ - ▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and
THE BANK OF
NEW YORK, a
New York banking corporation, as trustee (herein called
the "TRUSTEE").
RECITALS OF THE CORPORATION
The Corporation has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), which may be convertible into or exchangeable for any securities
of any Person including the Corporation to be issued in one or more series as in
this Indenture provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Corporation in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 DEFINITIONS.
-----------
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article or in any other
Article have the meanings assigned to them in this Article or such
other Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in Section 311 of the Trust Indenture
Act, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "Generally Accepted Accounting
Principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in Canada at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"ADDITIONAL AMOUNTS" has the meaning specified in Section
10.5.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ATTRIBUTABLE AMOUNT" means with respect to any sale and
leaseback transaction (as defined herein), as at the time of determination, the
present value (discounted at the rate of interest set forth or implicit in the
terms of such lease, compounded annually) of the total obligations of the lessee
for rental payments during the remaining term of the lease included in the sale
and leaseback transaction.
"AUTHENTICATING AGENT" means any Person appointed by the
Trustee to act on behalf of the Trustee pursuant to Section 6.11 to authenticate
Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of
Canada, will, if practicable, be The Globe & Mail, in the case of The City of
New York, will, if practicable, be The Wall Street Journal (Eastern Edition), in
the case of the United Kingdom will, if practicable, be The Financial Times
(London Edition) and, in the case of Luxembourg, will, if practicable, be The
Luxembourg (Wort)), in the English language or in an official language of the
country of publication, customarily published on each Business Day, whether or
not published on Saturdays, Sundays or holidays, and of general circulation in
each place in connection with which the term is used or in the financial
community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the
same or in different newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security except a Registered
Security.
"BOARD OF DIRECTORS" means the board of directors of the
Corporation or any duly authorized committee of such board.
2
"BOARD RESOLUTION" means a copy of a resolution certified by
any officer of the Corporation to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law, regulation or executive order
to close.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or
its successor.
"COMMISSION" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"COMMON DEPOSITARY" has the meaning specified in Section 3.4.
"CONSOLIDATED NET TANGIBLE ASSETS" means all consolidated
assets of the Corporation as shown on the most recent audited consolidated
balance sheet of the Corporation, less the aggregate of the following amounts
reflected upon such balance sheet: (i) all goodwill, deferred assets,
trademarks, copyrights and other similar intangible assets; (ii) to the extent
not already deducted in computing such assets and without duplication,
depreciation, depletion, amortization, reserves and any other account which
reflects a decrease in the value of an asset or a periodic allocation of the
cost of an asset; provided that no deduction shall be made under this clause
(ii) to the extent that such account reflects a decrease in value or periodic
allocation of the cost of any asset referred to in clause (i) above; (iii)
minority interests; (iv) current liabilities; and (v) Non-Recourse Assets to the
extent of the outstanding Non-Recourse Debt financing such assets.
"CONSOLIDATED SHAREHOLDERS' EQUITY" means, without
duplication, the aggregate amount of shareholders' equity (including, without
limitation, common share capital, preferred share capital, contributed surplus
and retained earnings) of the Corporation as shown on the most recent audited
consolidated balance sheet of the Corporation, adjusted by the amount by which
common share capital, preferred share capital and contributed surplus has been
increased or decreased (as the case may be) from the date of such balance sheet
to the relevant date of determination, in accordance with Generally Accepted
Accounting Principles, together with the aggregate principal amount of
obligations of the Corporation in respect of Preferred Securities.
"CONVERSION DATE" has the meaning specified in Section
3.12(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such Foreign
Currency and by a central bank or other public institution of or within the
international banking community for the settlement of
3
transactions, and (ii) any currency unit (or composite currency) for the
purposes for which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office on the date of execution of this
Indenture is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except
that with respect to presentation of Securities for payment or for registration
of transfer or exchange, such term shall mean the office or agency of the
Trustee at which, at any particular time, its corporate agency business shall be
conducted.
"CORPORATION" includes corporations, associations, companies
and business trusts.
"CORPORATION" means the Person named as the "Corporation" in
the first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Corporation" shall mean such Person's successors and assigns.
"CORPORATION REQUEST" or "CORPORATION ORDER" means a written
request or order signed in the name of the Corporation by any officer (under the
corporate seal of the Corporation or otherwise), and delivered to the Trustee.
"COUPON" means any interest coupon pertaining to a Bearer
Security.
"CURRENCY" means any currency or currencies, composite
currency or currency unit or currency units, issued by the government of one or
more countries or by any recognized confederation or association of such
governments.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITORY FOR SECURITIES" means The Depository Trust
Company, or any successor, thereto.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or Currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE CURRENCY UNIT" has the meaning
specified in Section 3.12(g).
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning
specified in Section 3.12(f).
"ELECTION DATE" has the meaning specified in Section 3.12(h).
4
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of
New York,
Brussels Office, or its successor as operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EXCHANGE DATE" has the meaning specified in Section 3.4.
"EXCHANGE RATE AGENT" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, a
New York Clearing House bank, designated pursuant to
Section 3.1 or Section 3.13.
"EXCHANGE RATE OFFICERS' CERTIFICATE" means a tested telex or
a certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
3.2 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by any officer of the Corporation (under
the corporate seal of the Corporation or otherwise).
"FEDERAL BANKRUPTCY CODE" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising
under:
(a) any interest swap agreement, forward rate agreement,
floor, cap or collar agreement, futures or options, insurance or other
similar agreement or arrangement, or any combination thereof, entered
into or guaranteed by the Corporation where the subject matter of the
same is interest rates or the price, value, or amount payable
thereunder is dependent or based upon the interest rates or
fluctuations in interest rates in effect from time to time (but, for
certainty, shall exclude conventional floating rate debt);
(b) any currency swap agreement, cross-currency
agreement, forward agreement, floor, cap or collar agreement, futures
or options, insurance or other similar agreement or arrangement, or any
combination thereof, entered into or guaranteed by the Corporation
where the subject matter of the same is currency exchange rates or the
price, value or amount payable thereunder is dependent or based upon
currency exchange rates or fluctuations in currency exchange rates in
effect from time to time; and
(c) any agreement for the making or taking of any
commodity (including natural gas, oil or electricity), any commodity
swap agreement, floor, cap or collar agreement or commodity future or
option or other similar agreements or arrangements, or any combination
thereof, entered into or guaranteed by the Corporation where the
subject matter of the same is any commodity or the price, value or
amount payable thereunder is dependent or based upon the price of any
commodity or fluctuations in the price of any commodity;
5
to the extent of the net amount due or accruing due by the Corporation
thereunder (determined by marking-to-market the same in accordance with their
terms).
"FOREIGN CURRENCY" means any Currency other than Currency of
the United States.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means generally
accepted accounting principles which are in effect from time to time in Canada.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 3.1, securities
which are (a) direct obligations of the government which issued the currency in
which the principal of or any premium or interest on such Securities of a
particular series or any Additional Amounts in respect thereof are payable or
(b) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the government which issued the Currency in which the
Securities of such series or any Additional Amounts in respect thereof are
payable, the payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of a holder of a depositary receipt,
PROVIDED that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest or principal of the Government
Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register.
"INDEBTEDNESS" means all items of indebtedness in respect of
any amounts borrowed (including obligations with respect to bankers' acceptances
and contingent reimbursement obligations relating to letters of credit and other
financial instruments) and all Purchase Money Obligations which, in accordance
with Generally Accepted Accounting Principles, would be recorded in the
financial statements as at the date as of which Indebtedness is to be
determined, and in any event including, without duplication: (i) obligations
secured by any Security Interest existing on property owned subject to such
Security Interest, whether or not the obligations secured thereby shall have
been assumed; and (ii) guarantees, indemnities, endorsements (other than
endorsements for collection in the ordinary course of business) or other
contingent liabilities in respect of obligations of another Person for
indebtedness of that other Person in respect of any amounts borrowed by them.
"INDENTURE" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 3.1; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with
6
respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee established as
contemplated by Section 3.1, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue
Discount Security, shall be deemed to mean interest payable after Maturity at
the rate prescribed in such Original Issue Discount Security.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 3.1, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 3.1
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon (
New York City time) buying rate for such
Foreign Currency for cable transfers quoted in
New York City as certified for
customs purposes by the Federal Reserve Bank of
New York, and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either
New York City, London, England
or any other principal market for Dollars or such purchased Foreign Currency, in
each case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 3.1, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
Currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such Currency shall be that upon which a non-resident
issuer of securities designated in such Currency would purchase such Currency in
order to make payments in respect of such securities.
7
"MATERIAL SUBSIDIARY" means, at any time, a Subsidiary (i) the
total assets of which represent more than 10% of the total assets of the
Corporation determined on a consolidated basis as shown in the most recent
audited consolidated balance sheet of the Corporation; or (ii) the total
revenues of which represent more than 10% of the total revenues of the
Corporation determined on a consolidated basis as shown in the consolidated
income statement of the Corporation for the four most recent fiscal quarters of
the Corporation.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"NON-RECOURSE ASSETS" means the assets created, developed,
constructed or acquired with or in respect of which Non-Recourse Debt has been
incurred and any and all receivables, inventory, equipment, chattel paper,
intangibles and other rights or collateral arising from or connected with the
assets created, developed, constructed or acquired (including the shares or
other ownership interests of a single purpose entity which holds only such
assets and other rights and collateral arising therefrom or connected therewith)
and to which recourse of the lender of such Non-Recourse Debt (or any agent,
trustee, receiver or other Person acting on behalf of such lender) in respect of
such Indebtedness is limited in all circumstances (other than in respect of
false or misleading representations or warranties and customary indemnities
provided with respect to such financings).
"NON-RECOURSE DEBT" means any Indebtedness incurred to finance
the creation, development, construction or acquisition of assets and any
increases in or extensions, renewals or refundings of any such Indebtedness,
provided that the recourse of the lender thereof or any agent, trustee, receiver
or other Person acting on behalf of the lender in respect of such Indebtedness,
in respect thereof is limited in all circumstances (other than in respect of
false or misleading representations or warranties and customary indemnities
provided with respect to such financings) to the assets created, developed,
constructed or acquired in respect of which such Indebtedness has been incurred
and to any receivables, inventory, equipment, chattel paper, intangibles and
other rights or collateral arising from or connected with the assets so created,
developed, constructed or acquired (including the shares or other ownership
interests of a single purpose entity which holds any such assets and other
rights and collateral arising therefrom or connected therewith) and to which the
lender has recourse.
"OFFICERS' CERTIFICATE" means a certificate signed by any two
officers of the Corporation in their capacities as officers of the Corporation
and not in their personal capacities, (under the corporate seal of the
Corporation or otherwise) and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Corporation, including an employee of the Corporation,
and who shall be acceptable to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 5.2.
8
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Corporation) in trust or set aside and
segregated in trust by the Corporation (if the Corporation shall act as
its own Paying Agent) for the Holders of such Securities; PROVIDED
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Section
14.2 and 14.3, with respect to which the Corporation has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section
3.6 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Corporation;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination, upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date such
Security is originally issued by the Corporation as set forth in an Exchange
Rate Officers' Certificate delivered to the Trustee, of the principal amount
(or, in the case of an Original Issue Discount Security, the Dollar equivalent
as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 3.1, and
(iv) Securities owned by the Corporation or any other obligor upon the
Securities or any Affiliate of the Corporation or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer of the Trustee
9
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
certifies to the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Corporation or any other obligor upon
the Securities or any Affiliate of the Corporation or such other obligor.
"PAYING AGENT" means any Person (including the Corporation
acting as Paying Agent) authorized by the Corporation to pay the principal of
(or premium, if any) or interest, if any, on any Securities on behalf of the
Corporation.
"PERMITTED ENCUMBRANCE" means any of the following:
(a) any Security Interest existing as of the date of the first
issuance by the Corporation of Securities issued pursuant to
this Indenture, or arising thereafter pursuant to contractual
commitments entered into prior to such issuance;
(b) any Security Interest created, incurred or assumed to secure
any Purchase Money Obligation;
(c) any Security Interest created, incurred or assumed to secure
any Non-Recourse Debt;
(d) any Security Interest in favor of any Wholly-Owned Subsidiary;
(e) any Security Interest on property of a corporation or its
Subsidiaries which Security Interest exists at the time such
corporation is merged into, or amalgamated or consolidated
with the Corporation or such property is otherwise, directly
or indirectly acquired by the Corporation other than a
Security Interest incurred in contemplation of such merger,
amalgamation, consolidation or acquisition;
(f) any Security Interest securing any Indebtedness to any bank or
banks or other lending institution or institutions incurred in
the ordinary course of business and for the purpose of
carrying on the same, repayable on demand or maturing within
12 months of the date when such Indebtedness is incurred or
the date of any renewal or extension thereof;
(g) any Security Interest on or against cash or marketable debt
securities pledged to secure Financial Instrument Obligations;
(h) any Security Interest in respect of:
(i) liens for taxes, duties and assessments not at the
time overdue or any liens securing workmen's
compensation assessments, unemployment insurance or
other social security obligations; PROVIDED, HOWEVER,
that if any such liens, duties or assessments are
then overdue the Corporation or the applicable
Subsidiary thereof shall be contesting the same in
good faith;
10
(ii) any liens or rights of distress reserved in or
exercisable under any lease for rent and for
compliance with the terms of such lease;
(iii) any obligations or duties, affecting the property of
the Corporation or any Subsidiary thereof, to any
municipality or governmental, statutory or other
public authority, with respect to any franchise,
permit, licence or grant and any defects in title to
structures or other facilities arising solely from
the fact that such structures or facilities are
constructed or installed on lands held by the
Corporation or any Subsidiary thereof, under
franchises, permits, licences or other grants, from
a municipality or other such authority, which
obligations, duties and defects in the aggregate do
not materially impair the use of such property,
structures or facilities for the purpose for which
they are held by the Corporation or any Subsidiary
thereof;
(iv) any deposits or liens in connection with contracts,
bids, tenders or expropriation proceedings, surety or
appeal bonds, costs of litigation when required by
law, public and statutory obligations, liens or
claims incidental to current construction, builders',
mechanics', labourers', materialmen's,
warehousemen's, carriers' and other similar liens;
(v) the right reserved to or vested in any municipality
or governmental, statutory or other public authority
by any statutory provision or by the terms of any
lease, license, franchise, grant or permit, that
affects any land, to terminate any such lease,
license, franchise, grant or permit or to require
annual or other periodic payments as a condition to
the continuance thereof;
(vi) any undetermined or inchoate liens and charges
incidental to the current operations of the
Corporation or any Subsidiary thereof that have not
at the time been filed against the Corporation;
PROVIDED, HOWEVER, that if any such lien or charge
shall have been filed, the Corporation or the
applicable Subsidiary thereof shall be contesting the
same in good faith;
(vii) any Security Interest the validity of which is being
contested at the time by the Corporation or the
applicable Subsidiary thereof in good faith or
payment of which has been provided for by deposit
with the Trustee or another trustee of debt
securities issued by the Corporation or the
applicable Subsidiary thereof of an amount in cash
sufficient to pay the same in full;
(viii) any easements, rights-of-way and servitudes
(including, without in any way limiting the
generality of the foregoing, easements, rights-of-way
and servitudes for railways, sewers, ▇▇▇▇▇, drains,
gas and water mains or electric light and power or
telephone and telegraph conduits, poles, wires and
cables) that, in the opinion of the Corporation, will
not in the aggregate materially and adversely impair
the use or value of the land
11
concerned for the purpose for which it is held by
the Corporation or any Subsidiary thereof;
(ix) any security to a public utility or any municipality
or governmental, statutory or other public authority
when required by such utility, municipality or other
such authority in connection with the operations of
the Corporation or any Subsidiary thereof;
(x) any liens and privileges arising out of judgments or
awards with respect to which the Corporation or the
applicable Subsidiary thereof shall be prosecuting
an appeal or proceedings for review and with respect
to which it shall have secured a stay of execution
pending such appeal or proceedings for review; and
(xi) any other liens of a nature similar to the foregoing
which do not in the opinion of the Corporation
materially impair the use of the property subject
thereto or the operation of the business of the
Corporation or the applicable Subsidiary thereof or
the value of such property for the purpose of such
business;
(i) any extension, renewal, alteration or replacement (or
successive extensions, renewals, alterations or replacements)
in whole or in part, of any Security Interest referred to in
the foregoing clauses (a) through (h) inclusive, provided the
extension, renewal, alteration or replacement of such Security
Interest is limited to all or any part of the same property
that secured the Security Interest extended, renewed, altered
or replaced (plus improvements on such property) and the
principal amount of the Indebtedness secured thereby is not
increased; and
(j) any other Security Interest if the aggregate amount of
Indebtedness secured pursuant to this clause (j) (together
with the Attributable Amount of any sale and leaseback
transaction) does not exceed 20% of Consolidated Net Tangible
Assets.
"PERSON" means any individual, corporation, general or
limited, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLACE OF PAYMENT" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 3.1 and 10.2.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"PREFERRED SECURITIES" means securities which on the date of
issue thereof by a Person: (i) have a term to maturity of more than 30 years;
(ii) rank subordinate to the unsecured
12
and unsubordinated Indebtedness of such Person outstanding on such date; (iii)
entitle such person to defer the payment of interest thereon for more than four
years without thereby causing an event of default in respect of such securities
to occur; and (iv) entitle such Person to satisfy the obligation to make
payments of deferred interest thereon from the proceeds of the issuance of its
shares.
"PURCHASE MONEY OBLIGATION" means any monetary obligation
created or assumed as part of the purchase price of real or tangible personal
property, whether or not secured, any extensions, renewals, alterations or
replacements of any such obligation, provided that the principal amount of such
obligation outstanding on the date of such extension, renewal, alteration or
replacement is not increased and further provided that any security given in
respect of such obligation shall not extend to any property other than the
property acquired in connection with which such obligation was created or
assumed and fixed improvements, if any, erected or constructed thereon.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" means any Security registered in the
Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 3.1.
"REPAYMENT DATE" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any vice president, any assistant treasurer, any trust officer or
assistant trust officer, the controller or any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
13
"SECURITY INTEREST" means any mortgage, charge, pledge, lien,
encumbrance, assignment by way of security, title retention agreement or other
security interest whatsoever, howsoever created or arising, whether absolute or
contingent, fixed or floating, perfected or not, which secures payment or
performance of an obligation.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 3.5.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 3.7.
"STATED MATURITY", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a Coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 3.8.
"SUBSIDIARY" means, in relation to a Person (i) any
corporation of which at least a majority of the outstanding shares having by the
terms thereof ordinary voting power to elect a majority of the board of
directors of such corporation (irrespective of whether at the time shares of any
other class or classes of such corporation might have voting power by reason of
the happening of any contingency, unless the contingency has occurred and then
only for as long as it continues) is at the time directly, indirectly or
beneficially owned or controlled by the Person or one or more of its
Subsidiaries, or the Person and one or more of its Subsidiaries; (ii) any
partnership of which the Person or one or more of its Subsidiaries, or the
Person and one or more of its Subsidiaries: (a) directly, indirectly or
beneficially own or control more than 50% of the income, capital, beneficial or
ownership interests (however designated) thereof; and (b) is a general partner,
in the case of a limited partnership, or is a partner that has authority to bind
the partnership, in all other cases; or (iii) any other Person of which at least
a majority of the income, capital, beneficial or ownership interests (however
designated) are at the time directly, indirectly or beneficially owned or
controlled by the first-mentioned Person or one or more of its Subsidiaries, or
the Person and one or more of its Subsidiaries.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as
in force at the date as of which this Indenture was executed, except as provided
in Section 9.5.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect
to any Securities pursuant to Section 3.1, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
14
"VALUATION DATE" has the meaning specified in Section 3.12(c).
"WHOLLY-OWNED SUBSIDIARY" means any Subsidiary of the
Corporation that the Corporation directly or indirectly beneficially owns 100%
of the outstanding shares having by the terms thereof ordinary voting power to
elect a majority of the board of directors of such Subsidiary or owns, directly
or indirectly, 100% of the income, capital, beneficial or ownership interests
(however designated) thereof.
"YIELD TO MATURITY" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
Section 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Corporation to the
Trustee to take any action under any provision of this Indenture, the
Corporation shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 10.4) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such covenant or condition has been complied
with.
Section 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters
15
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Corporation
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Corporation stating that the
information with respect to such factual matters is in the possession of the
Corporation unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the provisions
of Article Fifteen, or a combination of such instruments and any such record.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Corporation. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and (subject to Section 6.2 hereof) conclusive in
favor of the Trustee and the Corporation, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 15.6.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact
16
and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine, and the Trustee may in any instance require further proof
with respect to any of the matters referred in this Section.
(c) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of commencement and the
date of termination of holding the same, shall be proved by the Security
Register.
(d) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate executed,
as depositary, by any trust company, bank or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Corporation may assume that such ownership
of any Bearer Security continues until (1) another certificate or affidavit
bearing a later date issued in respect of the same Bearer Security is produced,
or (2) such Bearer Security is produced to the Trustee by some other Person, or
(3) such Bearer Security is surrendered in exchange for a Registered Security,
or (4) such Bearer Security is no longer Outstanding. The ownership, principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner that the Trustee
deems sufficient.
(e) If the Corporation shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Corporation may, at its option, by or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Corporation shall have no obligation to do
so. Notwithstanding Section 316(c) of the Trust Indenture Act, such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; PROVIDED that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange
17
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee, the Corporation in reliance thereon, whether or not
notation of such action is made upon such Security.
Section 1.5 NOTICES, ETC., TO TRUSTEE AND CORPORATION.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other documents provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Corporation shall
be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention: Corporate Trust/Global Finance
Unit, or
(2) the Corporation by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Corporation addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing
to the Trustee by the Corporation.
Section 1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Corporation or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders of Registered
Securities is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impractical to
mail notice of any event to Holders of Registered Securities when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be directed by the Corporation shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 3.1, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in The City of New York and in such other city or
cities as, may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
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In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders of every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver or other Act required or permitted under this Indenture shall be in
the English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 1.7 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the
Corporation shall bind its successors and assigns, whether so expressed or not.
Section 1.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 1.10 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or Coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or Coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 1.11 GOVERNING LAW.
This Indenture, the Securities and Coupons shall be governed
by and construed in accordance with the law of the State of New York. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent
19
applicable, be governed by such provisions. If any provision hereof limits,
qualifies or conflicts with a provision of the Trust Indenture Act that is
required under the Trust Indenture Act to be a part of and govern this
Indenture, the latter provision shall prevail. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section 1.12 LEGAL HOLIDAY.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security other than a provision in the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
PROVIDED that no interest shall accrue for the period from and after such
Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
Section 1.13 AGENT FOR SERVICE SUBMISSION TO
JURISDICTION; WAIVER OF IMMUNITIES.
By the execution and delivery of this Indenture, the
Corporation (i) acknowledges that it has irrevocably designated and appointed CT
Corporation System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Securities or this Indenture that may be
instituted in any federal or state court in the City of New York or brought
under federal or state securities laws or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), (ii) submits to
the non-exclusive jurisdiction of any such court in any such suit or proceeding,
and (iii) agrees that service of process on CT Corporation System, in any manner
permitted by applicable law, and written notice of said service to the
Corporation (mailed or delivered to the Corporation, attention: Executive
Vice-President and General Counsel, at its principal office specified in the
first paragraph of this Indenture and in the manner specified in Section 1.5
hereof), shall be deemed in every respect effective service of process upon the
Corporation in any such suit or proceeding. The Corporation further agrees to
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect so long as any of
the Securities shall be outstanding.
To the extent that the Corporation has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, the Corporation hereby irrevocably waives such immunity in respect of
its obligations under this Indenture and the Securities, to the extent permitted
by law.
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The Corporation hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Indenture or the Securities in any
federal or state court in the City of New York, State of New York. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
Section 1.14 CONVERSION OF CURRENCY.
The Corporation covenants and agrees that the following
provisions shall apply to conversion of Currency in the case of the Securities
and this Indenture:
(a) (i) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it becomes
necessary to convert into any other Currency (the "JUDGMENT
CURRENCY") an amount due or contingently due under the Securities
of any series and this Indenture (the "REQUIRED CURRENCY"), then
the conversion shall be made at the rate of exchange prevailing on
the Business Day before the day on which a final judgment which is
not appealable or is not appealed is given or the order of
enforcement is made, as the case may be (unless a court shall
otherwise determine).
(ii) If there is a change in the rate of exchange
prevailing between the Business Day before the day on which the
judgment referred to in (i) above is given or an order of
enforcement is made, as the case may be (or such other date as a
court shall determine), and the date of receipt of the amount due,
the Corporation shall pay such additional (or, as the case may be,
such lesser) amount, if any, as may be necessary so that the
amount paid in the Judgment Currency when converted at the rate of
exchange prevailing on the date of receipt will produce the amount
in the Required Currency originally due.
(b) In the event of the winding-up of the Corporation at any
time while any amount or damages owing under the Securities and
this Indenture, or any judgment or order, rendered in respect
thereof, shall remain outstanding, the Corporation shall indemnify
and hold the Holders of Securities and the Trustee harmless
against any deficiency arising or resulting from any variation in
rates of exchange between (1) the date as of which the equivalent
of the amount in the Required Currency (other than under this
Subsection (b)) is calculated for the purposes of such winding-up
and (2) the final date for the filing of proofs of claim in such
winding-up. For the purpose of this Subsection (b) the final date
for the filing of proofs of claim in the winding-up of the
Corporation shall be the date fixed by the liquidator or otherwise
in accordance with the relevant provisions of applicable law as
being the latest practicable date as at which liabilities of the
Corporation may be ascertained for such winding-up prior to
payment by the liquidator or otherwise in respect thereto.
(c) The obligations contained in Subsections (a)(ii) and (b)
of this Section shall constitute separate and independent
obligations of the Corporation from its other obligations under
the Securities and this Indenture, shall give rise to separate and
independent causes of action against the Corporation shall apply
irrespective of any waiver or extension granted by any Holder or
Trustee from time to time and shall continue in full force and
effect
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notwithstanding any judgment or order or the filing of any proof of claim in the
winding-up of the Corporation for a liquidated sum in respect of amounts due
hereunder (other than under Subsection (b) above) or under any such judgment or
order. Any such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no proof or
evidence of any actual loss shall be required by the Corporation or the
applicable liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be reduced by any variation in rates of
exchange occurring between the said final date and the date of any liquidating
distribution.
(d) The term "RATE(S) OF EXCHANGE" shall mean, if the Canadian
Currency is the Judgment Currency and United States Currency is the Required
Currency, or vice versa the Bank of Canada noon rate for purchases on the
relevant date of the Required Currency with the Judgment Currency, as reported
by Telerate on screen 3194 (or such other means of reporting the Bank of Canada
noon rate as may be agreed upon by the Corporation and the Trustee) and includes
any premiums and costs of exchange payable.
Section 1.15 CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes
of the construction of the terms of this Indenture or of the Securities, in the
event that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER CURRENCY") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) on the date of determination.
Section 1.16 NO RECOURSE AGAINST OTHERS.
A director, officer, employee or shareholder, as such, of the
Corporation shall not have any liability for any obligations of the Corporation
under the Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder shall waive and release all such liability. Such waiver and release
shall be part of the consideration for the issue of the Securities.
Section 1.17 MULTIPLE ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement. One signed copy is enough to prove this Indenture.
Section 1.18 WAIVER OF JURY TRIAL.
Each of the Corporation and the Trustee hereby irrevocably
waives to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Indenture, the Securities or any transactions contemplated hereby.
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Section 1.19 CUSIP NUMBERS.
The Corporation in issuing any series of the Securities may
use CUSIP numbers, if then generally in use, and thereafter with respect to such
series, the Trustee may use such numbers in any notice of redemption or exchange
with respect to such series PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Corporation will promptly notify the Trustee of
any change in the CUSIP numbers.
ARTICLE 2.
SECURITY FORMS
Section 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related Coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or an Officers' Certificate or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the forms of Securities of any series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by an officer of the Corporation and delivered to the
Trustee at or prior to the delivery of the Corporation Order contemplated by
Section 3.3 for the authentication and delivery of such Securities. Any portion
of the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 3.1,
Bearer Securities shall have interest Coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities and Coupons shall be printed,
lithographed or engraved on steel-engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or Coupons. A Form of Security
is attached as Exhibit A hereto, but a Security may be in any form approved by
the Board of Directors of the Corporation in any Board Resolution or as approved
by an Officers' Certificate or as provided in an indenture supplemental hereto
pursuant to Section 3.1.
Section 2.2 FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
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Subject to Section 6.11, the Trustee's certificate of
authentication shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: _______________________
This is one of the Securities of the series designated therein
referred to in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By ______________________________
Authorized Signatory
Section 2.3 SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 3.1, then, notwithstanding clause
(10) of Section 3.1, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Corporation Order to be delivered to the Trustee pursuant to Section
3.3 or Section 3.4. Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Corporation Order. If a Corporation Order
pursuant to Section 3.3 or Section 3.4 has been, or simultaneously is,
delivered, any instructions by the Corporation with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 3.3 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Corporation and the Corporation delivers to the
Trustee the Security in global form together with written instructions (which
need not comply with Section 1.2 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 3.3.
Notwithstanding the provisions of Section 3.7, unless
otherwise specified as contemplated by Section 3.1, payment of principal of (and
premium, if any) and interest, if any,
24
on any Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 3.9 and except as
provided in the preceding paragraph, the Corporation, the Trustee and any agent
of the Corporation or the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security (i)
in the case of a permanent global Security in registered form, the Holder of
such permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or Clearstream.
ARTICLE 3.
THE SECURITIES
Section 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and, except
as otherwise provided in this Indenture, each such series shall be unsecured and
shall rank pari passu with each other and with all other unsecured and
unsubordinated indebtedness for borrowed money of the Corporation. There shall
be established in one or more Board Resolutions or pursuant to authority granted
by one or more Board Resolutions and, subject to Section 3.3, set forth in, or
determined in the manner provided in, an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (19) below), if
so provided, may be determined from time to time by the Corporation with respect
to unissued Securities of the series and set forth in such Securities of the
series when issued from time to time):
(1) the specific designation of the Securities of the
series (which shall distinguish the Securities of the series from
all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6, 11.7 or 13.5);
(3) the extent and manner, if any, to which payment on or
in respect of the Securities of the series will be senior or will
be subordinated to the prior payment of other liabilities and
obligations of the Corporation;
(4) the percentage or percentages of principal amount at
which the Securities of the series will be issued;
25
(5) the date or dates, or the method by which such date
or dates will be determined or extended, on which the principal
(and premium, if any) of the Securities of the series is payable;
(6) the rate or rates (whether fixed or variable) at
which the Securities of the series shall bear interest, if any, or
the method by which such rate or rates shall be determined, the
date or dates from which such interest shall accrue, or the method
by which such date or dates shall be determined, the Interest
Payment Dates on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date or dates shall be determined, whether and under
what circumstances Additional Amounts on such Securities or any of
them shall be payable, the notice, if any, to Holders regarding
the determination of interest on a floating rate Security and the
manner of giving such notice, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day year
of twelve 30-day months;
(7) the place or places, if any, other than the Corporate
Trust Office, where the principal of (and premium, if any) and
interest, if any, on Securities of the series shall be payable,
where any Registered Securities of the series may be surrendered
for registration of transfer, where Securities of the series may
be surrendered for exchange, where Securities of the series that
are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable and, if different than the location
specified in Section 1.5, the place or places where notices or
demands to or upon the Corporation in respect of the Securities of
the series and this Indenture may be served, the extent to which,
or the manner in which, any interest payment or Additional Amounts
on a global Security on an Interest Payment Date, will be paid and
the manner in which any principal of or premium, if any, on any
global Security will be paid;
(8) the period or periods within which, the price or
prices at which, the Currency in which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Corporation, if the
Corporation is to have that option;
(9) the obligation, if any, of the Corporation to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof,
and the period or periods within which, the price or prices at
which, the Currency in which, and other terms and conditions upon
which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denomination or denominations in
which any Registered Securities of the series shall be issuable
and, if other than denominations of $5,000, the denomination or
denominations in which any Bearer Securities of the series shall
be issuable;
(11) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
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(12) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.2 or the method by which such
portion shall be determined;
(13) if other than Dollars, the Currency in which payment
of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be payable or in which the
Securities of the series shall be denominated and the particular
provision applicable thereto in accordance with, in addition to or
in lieu of any of the provisions of Section 3.12;
(14) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be
determined;
(15) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Corporation or a Holder thereof,
in a Currency other than that in which such Securities are
denominated or stated to be payable, the period or periods within
which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the
Currency in which such Securities are to be so payable, in each
case in accordance with, in addition to or in lieu of any of the
provisions of Section 3.12;
(16) the designation of the initial Exchange Rate Agent,
if any;
(17) the applicability, if any, of Section 14.2 and/or
14.3 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the
provisions of Article Fourteen that shall be applicable to the
Securities of the series;
(18) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(19) any deletions from, modifications of or additions to
the Events of Default or covenants (including any deletions from,
modifications of or additions to Section 10.13) of the Corporation
with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of
Default or covenants set forth herein;
(20) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities (with or without
Coupons) or both, any restrictions applicable to the offer, sale
or delivery of Bearer Securities, whether any Securities of the
series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in
permanent global form with or without Coupons and, if so, whether
beneficial owners of interests in any such permanent global
Security may exchange such
27
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided
in Section 3.5; whether Registered Securities of the series may be
exchanged for Bearer Securities of the series (if permitted by
applicable laws and regulations), whether Bearer Securities of the
series may be exchanged for Registered Securities of such series,
and the circumstances under which and the place or places where
any such exchange may be made and if Securities of the series are
to be issuable in global form, the identity of any initial
depositary therefor;
(21) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(22) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Securities of the series shall
be payable, if otherwise than upon presentation and surrender of
the Coupons appertaining thereto as they severally mature, and the
extent to which or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid
if other than in the manner provided in Section 3.4;
(23) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, the form and/or terms of such certificates, documents
or conditions;
(24) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(25) whether, under what circumstances and the Currency in
which the Corporation will pay Additional Amounts on the
Securities of the series to any Holder in respect of any tax,
assessment or governmental charge and, if so, whether the
Corporation will have the option to redeem such Securities rather
than pay such Additional Amounts (and the terms of any such
option);
(26) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including
the Corporation), the terms and conditions upon which such
Securities will be so convertible or exchangeable; and
(27) any other terms, conditions, rights and preferences
(or limitations on such rights and preferences) relating to the
series which do not apply generally to the Securities (which terms
shall not be inconsistent with the requirements of the Trust
Indenture Act or the provisions of this Indenture).
All Securities of any one series and the Coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered
28
Securities, as to denomination and except as may otherwise be provided in or
pursuant to such Board Resolution (subject to Section 3.3) and set forth in such
Officers' Certificate or in any such indenture supplemental hereto. Not all
Securities of any one series need be issued at the same time, and, unless
otherwise provided, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 3.2 DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 3.1. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $5,000. Securities not denominated in Dollars shall be issuable
in such denominations as are established with respect to such Securities in or
pursuant to this Indenture.
Section 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Securities and any Coupons appertaining thereto shall be
executed on behalf of the Corporation by any two officers of the Corporation,
under its corporate seal reproduced thereon or otherwise. The signature of any
of these officers on the Securities or Coupons may be the manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities or Coupons.
Securities or Coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Corporation shall bind the Corporation, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or Coupons or did not hold such offices at the date
of such Securities or Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Corporation may deliver Securities of any series
together with any Coupon appertaining thereto, executed by the Corporation to
the Trustee for authentication, together with a Corporation Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Corporation Order shall authenticate and deliver such Securities;
PROVIDED, HOWEVER, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and PROVIDED FURTHER that, unless otherwise specified with respect to
any series of Securities pursuant to Section 3.1, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit B-1 to this Indenture, dated no earlier than 15 days prior
to the earlier of the date on which such
29
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 3.4, the notation of a beneficial owner's interest therein upon original
issuance of such Security or upon exchange of a portion of a temporary global
Security shall be deemed to be delivery in connection with its original issuance
of such beneficial owner's interest in such permanent global Security. Except as
permitted by Section 3.6, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant Coupons for interest then matured have
been detached and cancelled. If not all the Securities of any series are to be
issued at one time and if the Board Resolution, Officers' Certificate or
supplemental indenture establishing such series shall so permit, such
Corporation Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, Stated Maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon, an Opinion of Counsel stating:
(a) that the form or forms of such Securities and any
Coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any Coupons have
been established in conformity with the provisions of this
Indenture;
(c) that such Securities together with any Coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Corporation to the Trustee for
authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture and
issued by the Corporation in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
the legal, valid and binding obligations of the Corporation,
enforceable against the Corporation in accordance with their
terms, subject to (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and
other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights, (ii) general
equitable principles and (iii) such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities and any Coupons;
(d) that all laws and requirements in respect of the
execution and delivery by the Corporation of such Securities, any
Coupons and of the supplemental indentures, if any, have been
complied with and that authentication and delivery of such
Securities any Coupons and the execution and delivery of the
supplemental indenture, if any, by the Trustee will not violate
the terms hereunder;
30
(e) that the Corporation has the corporate power to issue
such Securities and any Coupons and has duly taken all necessary
corporate action with respect to such issuance; and
(f) that the issuance of such Securities and any Coupons
will not contravene the articles of incorporation or by-laws of
the Corporation.
Notwithstanding the provisions of Section 3.1 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or the Corporation Order
and Opinion of Counsel otherwise required pursuant to the preceding two
paragraphs prior to or at the time of issuance of each Security, but such
documents shall be delivered prior to or at the time of issuance of the first
Security of such series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 3.1.
No Security or Coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of a Responsible
Officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Corporation, and the
Corporation shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10 together with a written statement (which need not
comply with Section 1.2 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Corporation,
for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Corporation may execute, and upon Corporation Order the Trustee
shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued, in registered form or, if authorized, in bearer form with
one or more Coupons or without Coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
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Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Corporation
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities such series upon surrender of the temporary Securities of
such series at the office or agency of the Corporation in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series (accompanied by the unmatured
Coupons appertaining thereto), the Corporation shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED FURTHER that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 3.3. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London, England office of a depositary or common
depositary (the "COMMON DEPOSITARY"), for the benefit of Euroclear and
Clearstream, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "EXCHANGE DATE"), the Corporation shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Corporation.
On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Corporation's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 3.1,
and, if any combination thereof is so specified, as requested by the beneficial
owner thereof; PROVIDED, HOWEVER, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the Exchange
Date or a subsequent date and signed by Euroclear as to the portion of such
temporary global Security held for its account then to be exchanged and a
certificate dated the Exchange Date or a subsequent date and signed by
Clearstream as to the portion of such temporary global Security held for its
account then to be exchanged, each in the form set forth in Exhibit B-2 to this
Indenture (or in such other form as may be established pursuant to Section 3.1);
and PROVIDED, FURTHER, that definitive Bearer Securities shall be delivered in
exchange for a portion of a temporary global Security only in compliance with
the requirements of Section 3.3.
32
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit B-1 to this Indenture (or in such
other form as may be established pursuant to Section 3.1), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or Clearstream. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global security shall be
deliverable only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 3.1, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit B-2 to this Indenture (or in such other form as may be
established pursuant to Section 3.1), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or Clearstream,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit B-1 to this Indenture (or in such other form as may be
established pursuant to Section 3.1). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 3.3 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the Exchange Date
or the date of certification if such date occurs after the Exchange Date,
without further act or deed by such beneficial owners. Except as otherwise
provided in this paragraph, no payments of principal (or premium, if any) or
interest, if any, owing with respect to a beneficial interest in a temporary
global Security will be made unless and until such interest in such temporary
global Security shall have been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and Clearstream and not paid as
herein provided shall be returned to the Trustee no later than one month prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Corporation in accordance with Section 10.3.
Section 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
33
The Corporation shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Registered Securities (the
registers maintained in the Corporate Trust Office of the Trustee and in any
other office or agency of the Corporation in a Place of Payment being herein
sometimes collectively referred to as the "SECURITY REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Corporation shall
provide for the registration of Registered Securities and of transfers of
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times, the Security Register for each series shall be open to
inspection by the applicable security registrar (the "SECURITY REGISTRAR"). The
Trustee is hereby initially appointed as Security Registrar for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided. The Corporation shall have the right to remove and replace from
time to time the Security Registrar for any series of Securities; PROVIDED,
THAT, no such removal or replacement shall be effective until a successor
Security Registrar with respect to such series of Registered Securities shall
have been appointed by the Corporation and shall have accepted such appointment
by the Corporation. In the event that the Trustee shall not be or shall cease to
be the Security Registrar with respect to a series of Securities, it shall have
the right to examine the Security Register for such series at all reasonable
times. There shall be only one Security Register for such series of Securities.
Notwithstanding the foregoing, to the extent required under applicable law, the
Corporation agrees to maintain at its registered office in Canada or any other
place in Canada designated by the board of directors, a central securities
register (which shall not be a Securities Register hereunder), wherein the
Corporation shall record information derived from the Securities Register and
other information required by applicable law.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Corporation shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount and tenor,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Whenever any Registered Securities are so surrendered for exchange, the
Corporation shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities, which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as
contemplated by Section 3.1, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 3.3) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 3.1, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured Coupons and all matured Coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured Coupon or Coupons or matured
34
Coupon or Coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Corporation in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Corporation and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing Coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; PROVIDED, HOWEVER, that, except as otherwise provided in Section 10.2,
interest represented by Coupons shall be payable only upon presentation and
surrender of those Coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Corporation shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 3.1, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 3.1
and PROVIDED that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Corporation shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Corporation. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Corporation Order with respect
thereto to the Trustee, as the Corporation's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged, which (unless such Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are
35
issuable, as provided in or pursuant to this Indenture) shall be in the form of
Bearer Securities or Registered Securities, or any combination thereof, as shall
be specified by the beneficial owner thereof; PROVIDED, HOWEVER, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and PROVIDED, FURTHER, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
If at any time the Depositary for Securities of a series
notifies the Corporation that it is unwilling, unable or no longer qualifies to
continue as Depositary for Securities of such series or if at any time the
Depositary for Securities for such series shall no longer be registered or in
good standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, the Corporation shall appoint a successor
depositary with respect to the Securities for such series. If a successor to the
Depositary for Securities is not appointed by the Corporation within 90 days
after the Corporation receives such notice or becomes aware of such condition,
as the case may be, the Corporation's election pursuant to Section 3.1 shall no
longer be effective with respect to the Securities for such series and the
Corporation will execute, and the Trustee, upon receipt of a Corporation Order
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive registered
form, in authorized denominations, and in an aggregate principal amount equal to
the principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
If an Event of Default, under Section 5.1 hereof, occurs and
is continuing, then the Securities of any series issued in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities. In addition, the Corporation may at any time and in its sole
discretion determine that the Securities of any series issued in the form of one
or more global Securities shall no longer be represented by such global Security
or Securities. In either such event the Corporation will execute, and the
Trustee, upon receipt of a Corporation Order for the authentication and delivery
of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the global Security or Securities representing such series in exchange
for such global Security or Securities.
Upon the exchange of a global Security for Securities in
definitive registered form, such global Security shall be cancelled by the
Trustee. Securities issued in exchange for a global Security pursuant to this
Section shall be registered in such names and in such authorized
36
denominations as the depositary for such global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee in writing. The Trustee shall deliver such Securities to
the persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Corporation
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Corporation or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer, in form satisfactory to the Corporation and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, 11.7 or 13.5 not involving any
transfer.
The Corporation shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period beginning
at the opening of business 15 days before the day of the selection for
redemption of Securities of that series under Section 11.3 or 12.3 and ending at
the close of business on (A) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that, to the extent provided with
respect to such Bearer Security, such Bearer Security may be exchanged for a
Registered Security of that series and like tenor; PROVIDED that such Registered
Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture, or
(iv) to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
Section 3.6 MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security or a Security with a mutilated
Coupon appertaining to it is surrendered to the Trustee, the Corporation shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with Coupons corresponding
to the Coupons, if any, appertaining to the surrendered Security, or, in case
any such mutilated Security or Coupon has become or is about to become due and
payable, the Corporation in its
37
discretion may, instead of issuing a new Security, with Coupons corresponding to
the Coupons, if any, appertaining to the surrendered Security, pay such Security
or Coupon.
If there shall be delivered to the Corporation and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or Coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Corporation or the Trustee that such Security or Coupon
has been acquired by a bona fide purchaser, the Corporation shall execute and
upon Corporation Order the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security for
which a destroyed, lost or stolen Coupon appertains (with all appurtenant
Coupons not destroyed, lost or stolen), a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding, with Coupons corresponding to the Coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen Coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or Coupon has
become or is about to become due and payable, the Corporation in its discretion
may, instead of issuing a new Security, pay such Security, with Coupons
corresponding to the Coupons, if any, appertaining to such mutilated, destroyed,
lost or stolen Security or to the Security to which such mutilated, destroyed,
lost or stolen Coupon appertains, pay such Security or Coupon; PROVIDED,
HOWEVER, that payment of principal of (and premium, if any) and interest, if
any, on Bearer Securities shall, except as otherwise provided in Section 10.2,
be payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 3.1, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Corporation may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its Coupons, if any,
issued pursuant to this Section in lieu of any mutilated, destroyed, lost or
stolen Security or in exchange for a Security to which a mutilated, destroyed,
lost or stolen Coupon appertains, shall constitute an original additional
contractual obligation of the Corporation, whether or not the mutilated,
destroyed, lost or stolen Security and its Coupons, if any, or the mutilated,
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
38
Section 3.7 PAYMENT OF PRINCIPAL AND INTEREST; INTEREST
RIGHTS PRESERVED; OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 3.1
with respect to any series of Securities, interest, if any, on any Registered
Security which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Corporation maintained for such purpose pursuant to Section 10.2; PROVIDED,
HOWEVER, that each installment of the principal of (and premium, if any, on) and
interest, if any, on any Registered Security may at the Corporation's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.9, to the address of
such Person as it appears on the Security Register or (ii) wire transfer to an
account located in the United States maintained by the payee (with wire transfer
instructions provided to the Trustee not less than 15 days prior to payment of
interest by wire transfer); PROVIDED FURTHER, that principal paid in relation to
any Security redeemed at the option of the Corporation pursuant to Article
Eleven, or paid at Maturity, shall be paid to the holder of such Security only
upon presentation and surrender of such Security to such office or agency
referred to in this Section 3.7(a).
Unless otherwise provided as contemplated by Section 3.1 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 3.1,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such defaulted
interest and, if applicable, interest on such defaulted interest (to the extent
lawful) at the rate specified in the Securities of such series (such defaulted
interest and, if applicable, interest thereon herein collectively called
"DEFAULTED INTEREST") may be paid by the Corporation, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Corporation may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Corporation shall
notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Registered Security of such series and
the date of the proposed payment, and at the same time the
Corporation shall deposit with the Trustee an amount of money in
the Currency in which the Securities of such series are payable
39
(except as otherwise specified pursuant to Section 3.1 for the
Securities of such series and except, if applicable, as provided
in Sections 3.12(b), 3.12(d) and 3.12(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Corporation of such Special Record Date
and, in the name and at the expense of the Corporation, shall
cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner
provided in Section 1.6, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been so given, such Defaulted Interest shall be paid to the
Persons in whose name the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2).
(2) The Corporation may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after
notice given by the Corporation to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 3.7(b) may be made
applicable to any series of Securities pursuant to Section 3.1
(with such modifications, additions or substitutions as may be
specified pursuant to such Section 3.1). The interest rate (or the
spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the
Corporation on the date or dates specified on the face of such
Security (each an "OPTIONAL RESET DATE"). The Corporation may
exercise such option with respect to such Security by notifying
the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security, which notice
shall specify the information to be included in the Reset Notice
(as defined). Not later than 40 days prior to each Optional Reset
Date, the Trustee shall transmit, in the manner provided for in
Section 1.6, to the Holder of any such Security a notice (the
"RESET NOTICE") indicating whether the Corporation has elected to
reset the interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier,
if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next
Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a
"SUBSEQUENT INTEREST PERIOD"), including the date or dates on
which, or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Corporation may, at its option, revoke the interest
rate (or the spread or spread
40
multiplier used to calculate such interest rate, if applicable) provided for in
the Reset Notice and establish an interest rate (or a spread or spread
multiplier used to calculate such interest rate, if applicable) that is higher
than the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period by causing
the Trustee to transmit, in the manner provided for in Section 1.6, notice of
such higher interest rate (or such higher spread or spread multiplier, if
applicable) to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities
have not tendered such Securities for repayment (or have validly revoked any
such tender) pursuant to the next succeeding paragraph, will bear such higher
interest rate (or such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Corporation of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.8 OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 3.8 may be made applicable to
any series of Securities pursuant to Section 3.1 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.1).
The Stated Maturity of any Security of such series may be extended at the option
of the Corporation for the period or periods specified on the face of such
Security (each an "EXTENSION PERIOD") up to but not beyond the date set forth on
the face of such Security. The Corporation may exercise such option with respect
to any Security by notifying the Trustee of such exercise at least 50 but not
more than 60 days prior to the Stated Maturity of such Security in effect prior
to the exercise of such option (the "ORIGINAL STATED MATURITY"). If the
Corporation exercises such option, the Trustee shall transmit, in the manner
provided for in Section 1.6, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "EXTENSION NOTICE")
indicating (i) the election of the Corporation to extend the Stated Maturity,
(ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
41
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Corporation may, at its
option, revoke the interest rate provided for in the Extension Notice and
establish a higher interest rate for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 1.6, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Corporation extends the Stated Maturity of any
Security, the Holder will have the option to elect repayment of such Security by
the Corporation on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Corporation has extended the
Maturity thereof, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders, except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension Notice, the Holder
may by written notice to the Trustee revoke such tender for repayment until the
close of business on the tenth day before the Original Stated Maturity.
Section 3.9 PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Corporation, the Trustee and any agent of any of
the foregoing may treat the Person in whose name such Registered Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 3.5 and 3.7)
interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the
Corporation, the Trustee or any agent of any of the foregoing shall be affected
by notice to the contrary.
Title to any Bearer Security and any Coupons appertaining
thereto shall pass by delivery. The Corporation, the Trustee and any agent of
the Corporation or the Trustee may treat the bearer of any Bearer Security and
the bearer of any Coupon as the absolute owner of such Security or Coupon for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or Coupons be overdue, and
none of the Corporation, the Trustee or any agent of the Corporation or the
Trustee shall be affected by notice to the contrary.
The Depositary for Securities may be treated by the
Corporation, the Trustee, and any agent of the Corporation or the Trustee as the
owner of such global Security for all purposes whatsoever. None of the
Corporation, the Trustee, any Paying Agent or the Security Registrar will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Corporation, the Trustee, or any
agent of any of the foregoing from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of
42
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 3.10 CANCELLATION.
All Securities and Coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and Coupons so delivered to the Trustee shall be
promptly cancelled by it. The Corporation may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Corporation may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Corporation has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Corporation shall so acquire any of
the Securities, however, then, unless provided otherwise in an Officers'
Certificate or a supplemental indenture relating to a series of Securities, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Corporation unless by Corporation Order the Corporation shall direct that
cancelled Securities be returned to it.
Section 3.11 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1
with respect to any Securities, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
For the purposes only of the disclosure required by the INTEREST ACT (Canada),
and without affecting the amount of interest payable to any Holder or the
calculation of interest on any Securities, if any rate of interest on any
Securities is calculated on the basis of a deemed year which contains fewer days
than the actual number of days in the calendar year of calculation, such rate of
interest shall be expressed as a yearly rate for the purposes of the INTEREST
ACT (Canada) by multiplying such rate of interest by the actual number of days
in the calendar year of calculation and dividing it by the number of days in
such deemed year. Notwithstanding the foregoing, and for the purposes only of
disclosure required by the INTEREST ACT (Canada), and without affecting the
amount of interest payable to any Holder or the calculation of interest on any
Securities, whenever interest to be paid under a Security is to be calculated on
the basis of a year of 360 days consisting of twelve 30-day months, the yearly
rate of interest to which the rate determined pursuant to such calculation is
equivalent during any particular period is the rate so determined multiplied by
a fraction of which:
(a) the numerator is the product of:
(i) the actual number of days in the calendar year in
which the same is to be ascertained, and
43
(ii) the sum of (A) the product of (x) 30 and (y)
the number of complete months elapsed in the relevant period
and (B) the number of days elapsed in any incomplete month in
the relevant period, and
(b) the denominator is the product of (i) 360 and (ii) the number
of days in the relevant period.
Section 3.12 CURRENCY AND MANNER OF PAYMENTS IN RESPECT
OF SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered or Bearer Security, as the case may be, is payable. The
provisions of this Section 3.12 may be modified or superseded with respect to
any Securities pursuant to Section 3.1.
(b) It may be provided pursuant to Section 3.1 with respect
to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 3.1, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Corporation has deposited funds pursuant to Article Four or Fourteen or with
respect to which a notice of redemption has been given by the Corporation or a
notice of option to elect repayment has been sent by such Holder or such
transferee). Any Holder of any such Registered Security who shall not have
delivered any such election to the Trustee not later than the close of business
on the applicable Election Date will be paid the amount due on the applicable
payment date in the relevant Currency as provided in Section 3.12(a). The
Trustee shall notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 3.1, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 3.1, then, unless otherwise specified pursuant to Section 3.1, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Corporation a written notice specifying, in the Currency in which Registered
Securities of such series are payable, the respective aggregate amounts of
principal of (and
44
premium, if any) and interest, if any, on the Registered Securities to be paid
on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities of such series shall have elected to be paid in another Currency as
provided in paragraph (b) above. If the election referred to in paragraph (b)
above has been provided for pursuant to Section 3.1 and if at least one Holder
has made such election, then, unless otherwise specified pursuant to Section
3.1, on the second Business Day preceding such payment date the Corporation will
deliver to the Trustee for such series of Registered Securities an Exchange Rate
Officers' Certificate in respect of the Dollar or Foreign Currency payments to
be made on such payment date. Unless otherwise specified pursuant to Section
3.1, the Dollar or Foreign Currency amount receivable by Holders of Registered
Securities who have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Corporation on the basis of the applicable
Market Exchange Rate in effect on the third Business Day (the "VALUATION DATE")
immediately preceding each payment date, and such determination shall be
conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "CONVERSION DATE"), the Dollar shall be the Currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 3.1, the Dollar amount to be paid by the Corporation to the Trustee and
by the Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be, in the case of a Foreign Currency other
than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the
case of a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 3.1, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) above.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
45
(h) For purposes of this Section 3.12 the following terms
shall have the following meanings:
A "Component Currency" shall mean any Currency which, on the
Conversion Date, was a component currency of the relevant currency
unit.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which
were represented in the relevant currency unit, on the Conversion Date.
If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified
Amount of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value at the
Market Exchange Rate on the date of such replacement equal to the
Dollar Equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such
division and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation Date,
the Specified Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be converted
into Dollars at the Market Exchange Rate in effect on the Conversion
Date of such Component Currency.
"Election Date" shall mean the date for any series of
Registered Securities as specified pursuant to clause (15) of Section
3.1 by which the written election referred to in paragraph (b) above
may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Corporation, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Corporation and the Trustee of any such
decision or determination.
In the event that the Corporation determines in good faith
that a Conversion Event has occurred with respect to a Foreign Currency, the
Corporation will immediately give written notice thereof to the Trustee and to
the Exchange Rate Agent (and the Trustee will promptly thereafter give notice in
the manner provided for in Section 1.6 to the affected Holders)
46
specifying the Conversion Date. In the event the Corporation so determines that
a Conversion Event has occurred with respect to any currency unit in which
Securities are denominated or payable, the Corporation will immediately give
written notice thereof to the Trustee and to the Exchange Rate Agent (and the
Trustee will promptly thereafter give notice in the manner provided for in
Section 1.6 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
the Corporation determines in good faith that any subsequent change in any
Component Currency as set forth in the definition of Specified Amount above has
occurred, the Corporation will similarly give written notice to the Trustee and
the Exchange Rate Agent.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Corporation and the Exchange
Rate Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Corporation or the
Exchange Rate Agent.
Section 3.13 APPOINTMENT AND RESIGNATION OF SUCCESSOR
EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 3.1, if and
so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Corporation will
maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent. The Corporation will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 3.1 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 3.12.
(b) The Corporation shall have the right to remove and replace
from time to time the Exchange Rate Agent for any series of Securities. No
resignation or removal of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Corporation and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause with respect to the Securities of one or more
series, the Corporation, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 3.1, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Corporation on the same date and that are initially denominated and/or
payable in the same Currency).
ARTICLE 4.
SATISFACTION AND DISCHARGE
47
Section 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Corporation Request cease to be of
further effect with respect to any series of Securities specified in such
Corporation Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series expressly provided for herein
or pursuant hereto and any right to receive Additional Amounts as contemplated
by Section 10.5 and any right of the Corporation to redeem Securities of such
series under Section 11.8) and the Trustee, at the expense of the Corporation,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered (other than (i) Coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in
Section 3.5, (ii) Securities and Coupons of such series which
have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, (iii) Coupons
appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been
waived as provided in Section 11.6, and (iv) Securities and
Coupons of such series for whose payment money has theretofore
been deposited in trust with the Trustee or any Paying Agent
or segregated and held in trust by the Corporation and
thereafter repaid to the Corporation, as provided in Section
10.3) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Corporation, are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Corporation,
and the Corporation, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
48
(2) the Corporation has paid or caused to be paid all
other sums payable hereunder by the Corporation with respect to
the Outstanding Securities of such series, and
(3) the Corporation has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Corporation to the Trustee under Section 6.6,
the obligations of the Corporation to any Authenticating Agent under Section
6.11 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section and the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Corporation acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
the Trustee; but such money need not be segregated from other funds except to
the extent required by law.
ARTICLE 5.
REMEDIES
Section 5.1 EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to a supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such series pursuant to this
Indenture:
(1) if the Corporation defaults in payment of the
principal of or premium, if any, on any Security of that series
when the same becomes due under any provision hereof or of such
Security;
(2) if the Corporation defaults in payment of any
interest due on any Security of that series, or any related Coupon
or on any sinking fund payment and any such default continues for
a period of 30 days;
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(3) if the Corporation breaches or violates any covenant
or condition herein contained (other than in relation to clauses
(1) and (2) of Section 5.1) which, after notice in writing has
been given by the Trustee or Holders of at least 25% in principal
amount of all outstanding Securities of any series affected
thereby to the Corporation specifying such breach or violation and
requiring the Corporation to put an end to the same, the
Corporation fails to make good such breach or violation within a
period of 60 days, unless the Trustee (having regard to the
subject matter of the breach or violation) shall have agreed to a
longer period, and in such event, within the period agreed to by
the Trustee;
(4) if the Corporation or any Subsidiary:
(a) defaults in payment when due, including any
applicable grace period, or
(b) defaults in the performance or observance of any
other covenant, term, agreement or condition,
with respect to any Indebtedness, other than Non-Recourse Debt, in
an aggregate amount in excess of the greater of $75.0 million and
3% of Consolidated Shareholders' Equity and, if such Indebtedness
has not already matured in accordance with its terms, such
Indebtedness shall have been accelerated so that the same shall be
or become due and payable prior to the date on which the same
would otherwise have become due and payable, provided that if such
default is waived by the Persons entitled to do so, then the Event
of Default hereunder shall be deemed to be waived without further
action on the part of the Trustee or the Holders;
(5) if a decree or judgment of a Court having
jurisdiction is entered adjudging the Corporation or any Material
Subsidiary to be liable for the payment of money in excess of the
greater of $75.0 million and 3% of Consolidated Shareholders'
Equity, in the aggregate, and the Corporation or any such Material
Subsidiary, as the case may be, fails to pay such decree or
judgment within 60 days or file an appeal thereof within 60 days
or, if the Corporation or such Material Subsidiary, as the case
may be does file an appeal and such decree or judgment continues
unstayed or undischarged and in effect for a period of at least 60
days;
(6) if a decree or judgment of a Court having
jurisdiction is entered adjudging the Corporation or any Material
Subsidiary bankrupt or insolvent or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Corporation or any Material
Subsidiary under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other
bankruptcy, insolvency or analogous laws, or appointing a
receiver, liquidator, trustee, sequestrator (or other similar
official) of, or of all or substantially all of the property of,
the Corporation or any Material Subsidiary, other than
Non-Recourse Assets, or ordering the winding up or liquidation of
its affairs except in the ordinary course of carrying out or
pursuant to a transaction in respect of which the conditions in
Article 8 are duly performed and any such decree or judgment
continues unstayed or undischarged and in effect for a period of
at least 60 days; or
50
(7) if the Corporation or any Material Subsidiary
institutes proceedings to be adjudicated a bankrupt or insolvent,
or consents to the institution of bankruptcy or insolvency
proceedings against it under the BANKRUPTCY AND INSOLVENCY ACT
(Canada), the COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any
other bankruptcy, insolvency or analogous laws, or consents to the
filing of any such petition or to the appointment of a receiver,
liquidator, trustee, sequestrator (or other similar official) of,
or of any substantial part of the property of, the Corporation or
any Material Subsidiary, other than Non-Recourse Assets, or makes
a general assignment for the benefit of creditors, or admits in
writing its inability to pay its debts generally as they become
due or takes corporate action in furtherance of any of the
aforesaid purposes.
In addition to the events set forth above, the Corporation may
by indenture supplemental hereto, executed and delivered pursuant to the
provisions of Article 9, create further Events of Default.
Section 5.2 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default described in Section 5.1 with respect
to Securities of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that affected series may,
subject to subordination provisions, if any, declare the principal amount (or,
if the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount as may be specified in
the terms of such affected series) of all of the Securities of that series and
all interest thereon to be due and payable immediately, by a notice in writing
to the Corporation (and to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified portion thereof) shall become
immediately due and payable.
At any time after a declaration of acceleration with respect
to Securities of any series (or of all series, as the case may be) has been
made, but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Corporation and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Corporation has paid or deposited with the
Trustee a sum sufficient to pay in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such
series and except, if applicable, as provided in Sections 3.12(b),
3.12(4) and 3.12(e)),
(A) all overdue interest, if any, on all
Outstanding Securities of that series (or of all series, as the
case may be) and any related Coupons,
(B) all unpaid principal of (and premium, if any)
any Outstanding Securities of that series (or of all series, as
the case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal
at the rate or rates prescribed therefor in such Securities,
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(C) to the extent lawful, interest on overdue
interest, if any, at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Section 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Corporation covenants that if:
(1) default is made in the payment of any installment of
interest on any Security, or any related Coupon when such interest
becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
then the Corporation will, upon demand of the Trustee, pay to the Trustee for
the benefit of the Holders of such Securities and Coupons, the whole amount then
due and payable on such Securities and Coupons for principal (and premium, if
any) and interest, if any, and, to the extent lawful, interest on any overdue
principal (and premium, if any) and on any overdue interest, at the rate or
rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Corporation fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Corporation or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Corporation or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series (or of all series, as the
case may be) by such appropriate judicial proceedings as the Trustee shall deem
most
52
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Corporation or any other obligor upon
the Securities or the property of the Corporation or of such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Corporation for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or
Indexed Securities as may be specified in the terms of such
series, and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable
53
benefit of the Holders of the Securities and Coupons in respect of which such
judgment has been recovered.
Section 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, if any, upon presentation of the applicable
Securities or Coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
(i) FIRST: To the payment of all amounts due the Trustee
under Section 6.6;
(ii) SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest, if
any, on the Securities and Coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due
and payable on such Securities and Coupons for principal (and
premium, if any) and interest, if any, respectively; and
(iii) THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series or any related Coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, the Securities of any series, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of all series affected by such Event
of Default (determined as provided in Section 5.2), shall have
made written request to the Trustee to institute proceedings in
respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it against the costs,
expenses and liabilities to be incurred in compliance with, such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the
Holders of a majority or more in principal amount of the
Outstanding Securities of all series affected by such Event of
Default (determined as provided in Section 5.2);
54
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Outstanding Securities of any such affected series, or to obtain or
to seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all Holders of Outstanding Securities of
all such affected series.
Section 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any) and (subject to Section 3.7) interest, if any, on, such Security or payment
of such Coupon on the respective Stated Maturities expressed in such Security or
Coupons (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Corporation, the Trustee and the Holders
of Securities and Coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or Coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
55
Section 5.12 CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected by an Event of Default
(determined as provided in Section 5.2 and as one class) shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Outstanding Securities of such affected series,
provided in each case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the
Holders of Outstanding Securities of such affected series not
consenting.
Section 5.13 WAIVER OF PAST DEFAULTS.
Subject to Section 5.2, the Holders of not less than a
majority in principal amount of the Outstanding Securities of all affected
series with respect to which a Default shall have occurred and be continuing may
on behalf of the Holders of all the Outstanding Securities of such affected
series waive any past Default, and its consequences, except a Default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or any
related Coupon or the payment of Additional Amounts, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such
affected series.
Upon any such waiver, any such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 5.14 WAIVER OF STAY OR EXTENSION LAWS.
The Corporation covenants (to the extent that it may lawfully
do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Corporation (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or impede
the execution of any power herein
56
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 6.
THE TRUSTEE
Section 6.1 NOTICE OF DEFAULTS.
Within 30 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of such default hereunder known to the Trustee, unless such Default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series and any
related Coupons; and PROVIDED FURTHER that in the case of any Default of the
character specified in Section 5.1(3) with respect to Securities of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
Section 6.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Sections 315(a) through 315(d) of
the Trust Indenture Act:
(1) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any statutory
declaration, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Corporation mentioned
herein shall be sufficiently evidenced by a Corporation Request or
Corporation Order and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel of its selection
and the 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;
57
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related Coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security
or indemnity against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Corporation, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers,
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture;
(9) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of
any event which is in fact such a default is received by the
Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
(10) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder; and
(11) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not
superseded.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Section 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES.
58
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any Coupons shall be
taken as the statements of the Corporation, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or the Coupons, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that the
statements made by it in a Statement of Eligibility on Form T-1 supplied to the
Corporation are true and accurate, subject to the qualifications set forth
therein. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Corporation of Securities or the proceeds
thereof.
Section 6.4 MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Corporation or of the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and Coupons and, subject to Sections 310(b) and 311 of the Trust
Indenture Act, may otherwise deal with the Corporation with the same rights it
would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 6.5 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Corporation.
Section 6.6 COMPENSATION AND REIMBURSEMENT.
The Corporation agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its willful
misconduct, negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any and all loss, liability or expense including taxes
(other than taxes based upon the income of the Trustee) incurred
without willful misconduct, negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim (whether
asserted by the Corporation, any Holder or any Person) or
liability in connection with the exercise or performance of any of
its powers or duties hereunder.
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The obligations of the Corporation under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Corporation, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any Coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or (7), the
expenses (including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law.
"Trustee" for purposes of this Section 6.6 shall include any
predecessor Trustee but the willful misconduct, negligence or bad faith of any
Trustee shall not affect the rights of any other Trustee under this Section 6.6.
..
The provisions of this Section shall survive the termination
of this Indenture and the resignation or removal of the Trustee.
Section 6.7 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under Section 310(a)(1) of the Trust Indenture Act
and shall have a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of Federal, State, territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 6.8 RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.9.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Corporation. If the instrument of acceptance by a successor Trustee required by
Section 6.9 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee at the expense
of the Corporation may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of not less than a majority in
principal amount of the
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Outstanding Securities of such series, delivered to the Trustee and to the
Corporation. If the instrument of acceptance by a successor Trustee required by
Section 6.9 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the retiring Trustee, at the expense of
the Corporation, may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Section 310(b) of the Trust Indenture Act after written request
therefor by the Corporation or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
6.7 and shall fail to resign after written request therefor by the
Corporation or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Corporation, by or pursuant to authority granted
by a Board Resolution, may remove the Trustee with respect to all Securities or
the Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities of such series and the appointment
of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the
Corporation, by or pursuant to authority granted by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after such
resignation, removal or incapability, 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 Corporation and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Corporation. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Corporation or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
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(f) The Corporation shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to the Holders of Securities of such series in the manner provided for in
Section 1.6. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 6.9 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Corporation and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Corporation or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Corporation, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Corporation or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee, unless contemplated otherwise by such supplemental indenture,
all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates. Whenever there is a successor Trustee with respect to
one or more (but less than all) series of securities issued pursuant to this
Indenture, the terms "Indenture" and "Securities"
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shall have the meanings specified in the provisos to the respective definitions
of those terms in Section 1.1 which contemplate such situation.
(c) Upon request of any such successor Trustee, the
Corporation shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.10 MERGER CONVERSION; CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.11 APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.6. Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, and a copy of such instrument shall be promptly furnished to the
Corporation. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Corporation and shall at
all times be a
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corporation organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of
not less than $50,000,000 and subject to supervision or examination by federal
or state authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Corporation. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Corporation. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Corporation and shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 1.6. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Corporation agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated: ________________________
This is one of the Securities of the series designated therein
referred to in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
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By__________________________________
as Authenticating Agent
By__________________________________
as Authorized Signatory
ARTICLE 7.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND CORPORATION
Section 7.1 CORPORATION TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS.
The Corporation will furnish or cause to be furnished to the
Trustee (1) not more than 15 days after each Regular Record Date a list, in such
form as the Trustee may reasonably require, of the names and addresses of
Holders as of such Regular Record Date; PROVIDED, HOWEVER, that the Corporation
shall not be obligated to furnish or cause to be furnished such list at any time
that the list shall not differ in any respect from the most recent list
furnished to the Trustee by the Corporation and at such times as the Trustee is
acting as Security Registrar for the applicable series of Securities and (2) at
such other times as the Trustee may request in writing within 30 days after the
receipt by the Corporation of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished.
Section 7.2 PRESERVATION OF LIST OF NAMES AND ADDRESSES
OF HOLDERS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, all information as to the names and addresses of the
Holders contained in the most recent list furnished to it as provided in Section
7.1 and as to the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar for the applicable series of Securities (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(c) Holders may communicate as provided in Section 312(b)
of the Trust Indenture Act with other Holders with respect to their rights under
this Indenture or under the Securities.
Section 7.3 DISCLOSURE OF NAMES AND ADDRESSES OF
HOLDERS.
Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Corporation and the Trustee that none of the
Corporation or the Trustee or any agent of any of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, and that
the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
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Section 7.4 REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year commencing with
the first May 15 after the first issuance of Securities pursuant to this
Indenture, the Trustee shall transmit to the Holders of Securities, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
a brief report dated as of such May 15 if required by Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and
313(c) of the Trust Indenture Act.
(c) A copy of such report shall, at the time of such
transmission to the Holders, be filed by the Trustee with the Corporation
(Attention: Executive Vice-President and General Counsel), with each securities
exchange upon which any of the Securities are listed (if so listed) and also
with the Commission. The Corporation agrees to notify the Trustee when the
Securities become listed on any stock exchange.
Section 7.5 REPORTS BY THE CORPORATION.
The Corporation shall:
(1) file with the Trustee, within 15 days after the
Corporation is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing
as the Commission may from time to time by rules and regulations
prescribe) which the Corporation may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time
by the Commission, such additional information, documents and
reports with respect to compliance by the Corporation with the
conditions and covenants of this Indenture as may be required from
time to time by such rules and regulations;
(3) notwithstanding that the Corporation may not be
required to remain subject to the reporting requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, or
otherwise report on an annual and quarterly basis on forms
provided for such annual and quarterly reporting pursuant to rules
and regulations promulgated by the Commission, the Corporation
shall provide the Trustee:
(a) within 140 days after the end of each fiscal year,
the information required to be contained in annual reports on Form
20-F or 40-F as applicable (or any successor form); and
(b) within 60 days after the end of each of the first
three fiscal quarters of each fiscal year, the information
required to be contained in reports on Form 6K (or any successor
form) which, regardless of applicable requirements, shall, at a
minimum, consist of such information required to be provided in
quarterly reports under the laws of
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Canada or any province thereof to security holders of a
corporation with securities listed on The Toronto Stock Exchange,
whether or not the Corporation has any of its securities so
listed.
Such information will be prepared in accordance with Canadian
disclosure requirements and Generally Accepted Accounting Principles;
(4) transmit to all Holders, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act,
within 15 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be
filed by the Corporation pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations
prescribed from time to time by the Commission; and
(5) at all reasonable times, furnish to the Trustee or
its agents or attorneys such information relating to its business
as the Trustee may reasonably require.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE 8.
CONSOLIDATION, AMALGAMATION, MERGER,
CONVEYANCE, TRANSFER, OR LEASE
Section 8.1 CORPORATION MAY AMALGAMATE OR CONSOLIDATE,
ETC. ONLY ON CERTAIN TERMS.
The Corporation shall not enter into any transaction whereby
all or substantially all of its undertaking, property and assets would become
the property of any other person (herein called a "Successor") whether by way of
reorganization, consolidation, amalgamation, arrangement, merger, transfer, sale
or otherwise, unless:
(1) the Successor expressly assumes all of the covenants
and obligations of the Corporation hereunder and the transaction
otherwise meets the requirements hereunder;
(2) the entity formed by or continuing from such
consolidation or amalgamation or into which the Corporation is
merged or with which the Corporation enters into such arrangement
or the Person which acquires or leases all or substantially all of
the Corporation's properties and assets is organized and existing
under the laws of the United States, any state thereof or the
District of Columbia or the laws of Canada or any province
thereof;
67
(3) immediately before and after giving effect to such
transaction, no Event of Default hereunder, and no event which,
after notice or lapse of time or both, would become an Event of
Default hereunder, shall have happened and be continuing; and
(4) no condition or event shall exist as to the
Corporation (at the time of such transaction) or the Successor
(immediately after such transaction) and after giving full effect
thereto or immediately after the Successor shall become liable to
pay the principal monies, premium, if any, interest and other
monies due or which may become due hereunder, which constitutes or
would constitute an Event of Default hereunder.
In addition to the above conditions, such reorganization,
consolidation, amalgamation, arrangement, merger, transfer, sale or otherwise,
will to the satisfaction of the Trustee, substantially preserve and not impair
any rights and powers of the Trustee or Holders.
Section 8.2 SUCCESSOR PERSON SUBSTITUTED. Whenever the
conditions of Section 8.1 hereof shall have been duly observed and performed the
Successor shall possess and from time to time may exercise each and every right
and power of the Corporation under this Indenture in the name of the Corporation
or otherwise and any act or proceeding by any provision hereof required to be
done or performed by any director or officer of the Corporation may be done and
performed with like force and effect by the like directors or officers of the
Successor, or Persons exercising comparable powers in relation to the Successor.
Section 8.3 ASSIGNMENT OF RIGHTS.
Subject to Section 8.1, the Corporation will have the right at
all times to assign any of its rights or obligations under this Indenture to a
Wholly-Owned Subsidiary of the Corporation; PROVIDED, HOWEVER, that in the event
of any such assignment, the Corporation will remain fully and unconditionally
liable for all of its obligations hereunder and pursuant to the Securities by
execution of an indenture supplemental hereto, in form satisfactory to the
Trustee. Subject to the foregoing, this Indenture will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 8.4 SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any consolidation, amalgamation or statutory
arrangement of the Corporation with or merger of the Corporation into any other
Person, or upon any sale, conveyance, transfer or lease of all or substantially
all of the properties and assets of the Corporation to any other Person, any of
the property and assets of the Corporation or its Subsidiaries would thereupon
become subject to any Security Interest, then unless such Security Interest
could be created pursuant to Section 10.12 without equally and ratably securing
the Securities, the Corporation prior to or simultaneously with such
consolidation, amalgamation, statutory arrangement, merger, conveyance, transfer
or lease, will secure the Outstanding Securities hereunder (together with, if
the Corporation shall so determine, any other Indebtedness of the Corporation
now existing or hereafter created which is not subordinate to the Securities)
equally and ratably with (or prior to) the Indebtedness which upon such
consolidation, amalgamation, merger, sale, conveyance, transfer or lease is to
become secured by such Security Interest, or will cause such Securities to be so
secured; PROVIDED that, for the purpose of
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providing such equal and ratable security, the principal amount of Original
Issue Discount Securities and Indexed Securities shall mean that amount which
would at the time of making such effective provision be due and payable pursuant
to Section 5.2 and the terms of such Original Issue Discount Securities and
Indexed Securities upon a declaration of acceleration of the Maturity thereof,
and the extent of such equal and ratable security shall be adjusted, to the
extent permitted by law, as and when said amount changes over time pursuant to
the terms of such Original Issue Discount Securities and Indexed Securities.
ARTICLE 9.
SUPPLEMENTAL INDENTURES
Section 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Corporation, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Corporation and the assumption by any such successor of the
covenants of the Corporation contained herein and in the
Securities; or
(2) to add to the covenants of the Corporation for the
benefit of the Holders of all or any series of Securities and any
related Coupons (and if such covenants are to be for the benefit
of less than all series of Securities, stating that such covenants
are being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the
Corporation; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all
series of Securities, stating that such Events of Default are
being included solely for the benefit of such series); or
(4) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall
become effective only when there is no Security Outstanding of any
series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(5) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of or any premium or interest on Bearer
Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action
shall not adversely affect the interests of the Holders of
Securities of any series or any related Coupons in any material
respect; or
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(6) to secure the Securities pursuant to the requirements
of Section 8.4 or 10.12 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by
more than one Trustee, pursuant to the requirements of Section
6.9(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities, to
cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions
arising under this Indenture; PROVIDED such action shall not
adversely affect the interests of the Holders of Securities of any
series in any respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 4.1, 14.2 and 14.3; PROVIDED that any such action shall
not adversely affect the contractual interests of the Holders of
Securities of such series or any other series and any related
Coupons of Securities.
Section 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of any series affected by such
supplemental indenture, by Act of said Holders delivered to the Corporation and
the Trustee, the Corporation, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affect
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security of such series,
(1) subject to Section 3.8, change the Stated Maturity of
the principal of (or premium, if any) or any installment of
interest on any Security of such series, or reduce the principal
amount thereof (or premium, if any) or the rate of interest, if
any, thereon, or reduce the amount of the principal of an Original
Issue Discount Security of such series that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2 or the amount thereof provable in
bankruptcy pursuant to Section 5.4, or change any Place of Payment
where, or the Currency in which, any Security of such series or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the
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Redemption Date or Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as
may be provided pursuant to Section 3.1 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series required for any
modification or amendment of this Indenture, for any waiver of
compliance with certain provisions of this Indenture which affect
such series, or certain Defaults applicable to such series
hereunder and their consequences provided for in this Indenture,
or reduce the requirements of Section 15.4 for quorum or voting
with respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section
5.13 or Section 10.13, except to increase any such percentage or
to provide that certain other provisions of this Indenture which
affect such series cannot be modified or waived without the
consent of the Holder of each Outstanding Security of such series.
In addition, any amendment to, or waiver of, the provisions of
this Indenture relating to subordination that adversely affects the rights of
the Holders of Securities will require the consent of Holders of at least 75% in
aggregate principal amount of such Securities then outstanding.
Any such supplemental indenture adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture,
or modifying in any manner the rights of the Holders of Securities of a series,
shall not affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
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Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Corporation
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Corporation, to any such supplemental
indenture may be prepared and executed by the Corporation and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.7 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Corporation and the
Trustee of any supplemental indenture pursuant to the provisions of Section 9.2,
the Corporation shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 1.6, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE 10.
COVENANTS
Section 10.1 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST.
The Corporation covenants and agrees for the benefit of the
Holders of each series of Securities and any related Coupons that it will duly
and punctually pay or cause to be paid the principal of (and premium, if any)
and interest, if any (including, in the case of a Default or an Event of
Default, interest at the rate specified therein on the amount in Default to the
extent lawful), on the Securities of that series in accordance with the terms of
the Securities, any Coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 3.1 with respect to any series of
Securities, any interest installments due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
Coupons for such interest installments as are evidenced thereby as they
severally mature.
Section 10.2 MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Corporation will maintain or cause to be maintained in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable and where notices
and demands to or upon the Corporation in respect of the Securities of that
series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Corporation will maintain an office or agency outside the United States
where any Bearer Securities of that series
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and related Coupons may be presented or surrendered for payment, where Bearer
Securities of that series may be, surrendered for exchange, where Bearer
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, where notices and demands
to or upon the Corporation in respect of the Bearer Securities of that series
and this Indenture may be served and where Bearer Securities of that series and
related Coupons may be presented or surrendered for payment; PROVIDED, HOWEVER,
that, if the Bearer Securities of that series are listed on any stock exchange
located outside the United States and such stock exchange shall so require, the
Corporation will maintain a Paying Agent for the Securities of that series in
any required city located outside the United States so long as the Bearer
Securities of that series are listed on such exchange.
The Corporation will give prompt written notice to the Trustee
of the location, and any change in the location, of any such office or agency.
If at any time the Corporation shall fail to maintain any such required office
or agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related Coupons may be presented and surrendered for payment at
the offices specified in the Security, and the Corporation hereby appoints the
same as its agent to receive such respective presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Corporation in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in Dollars,
payment of principal of (and premium, if any) and interest, if any, on any
Bearer Security shall be made at the office of the Corporation's Paying Agent in
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for such purpose by the
Corporation in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Corporation may also from time to time designate one or
more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Corporation of its obligation to
maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Corporation will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities as contemplated by Section 3.1 with
respect to a series of Securities, the Corporation hereby designates as a Place
of Payment for each series of Securities the Corporate Trust/Global Finance Unit
of the Trustee in New York, New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in the Borough of Manhattan, The City of
New York and as its agent to receive all such presentations, surrenders, notices
and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or
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(ii) may be payable in a Foreign Currency, or so long as it is required under
any other provision hereunder, then the Corporation will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent.
Section 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Corporation shall at any time act as its own Paying
Agent with respect to any series of Securities and any related Coupons, it will,
on or before each due date of the principal of (or premium, if any) or interest,
if any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency or Currencies
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series and except,
if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient
to pay the principal of (or premium, if any) or interest, if any, on Securities
of such series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of
its action or failure so to act.
Whenever the Corporation shall have one or more Paying Agents
for any series of Securities and any related Coupons, it will, prior to 10:00 am
(local time at the place of payment) on each due date of the principal of (or
premium, if any) or interest, if any, on any Securities of that series, deposit
with a Paying Agent a sum (in the Currency or Currencies described in the
preceding paragraph) sufficient to pay the principal (or premium, if any) or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Corporation will promptly notify the Trustee of
its action or failure so to act.
The Corporation will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) and interest, if any, on
Securities of such series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the
Corporation (or any other obligor upon the Securities of such
series) in the making of any payment of principal of (or premium,
if any) or interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such Paying Agent.
The Corporation may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Corporation Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Corporation or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which sums were
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held by the Corporation or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Corporation,
in trust for the payment of the principal of (or premium, if any) or interest,
if any, on any Security of any series, or any Coupon appertaining thereto, and
remaining unclaimed for two years (or such shorter period as may be specified in
the applicable abandoned property statutes) after such principal, premium or
interest has become due and payable shall be paid to the Corporation, or the
Corporation (if any money is then held by the Corporation) shall be discharged
from such trust; and the Holder of such Security or Coupon shall thereafter, as
an unsecured general creditor, look only to the Corporation for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Corporation as trustee thereof, shall thereupon
cease; PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being
required to make any such repayment, shall at the written direction and at the
expense of the Corporation cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Corporation.
Section 10.4 STATEMENT AS TO COMPLIANCE.
The Corporation will deliver to the Trustee, within 140 days
after the end of each fiscal year, a certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of whether the Corporation is in compliance with all conditions
and covenants under this Indenture and, if not in such compliance, specifying
all such known defaults. For purposes of this Section 10.4, such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
Section 10.5 ADDITIONAL AMOUNTS.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, all payments made by the Corporation under or with
respect to the Securities of any series will be made free and clear of and
without withholding or deduction for or on account of any present or future tax,
duty, levy, impost, assessment or other governmental charge (including
penalties, interest and other liabilities related thereto) imposed or levied by
or on behalf of the Government of Canada or of any province or territory thereof
or by any authority or agency therein or thereof having power to tax
(hereinafter "TAXES"), unless the Corporation is required to withhold or deduct
Taxes by law or by the interpretation or administration thereof. If the
Corporation is so required to withhold or deduct any amount for or on account of
Taxes from any payment made under or with respect to the Securities, the
Corporation will pay such additional amounts ("ADDITIONAL AMOUNTS") as may be
necessary so that the net amount received by each Holder (including Additional
Amounts) after such withholding or deduction (and after deducting Taxes on such
Additional Amounts) will not be less than the amount the Holder would have
received if
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such Taxes had not been withheld or deducted; PROVIDED that no Additional
Amounts will be payable:
(1) to any Person in respect of whom such Taxes are
required to be withheld or deducted as a result of such Person not
dealing at arm's length with the Corporation (within the meaning
of the INCOME TAX ACT (Canada));
(2) to any Person by reason of such Person being
connected with Canada (otherwise than merely by holding or
ownership of any series of Securities or receiving any payments or
exercising any rights thereunder), including without limitation a
non-resident insurer who carries on an insurance business in
Canada and in a country other than Canada;
(3) for or on account of any Taxes which would not have
been so imposed but for (i) the presentation by the Holder of such
Security or Coupon for payment on a date more than 30 days after
the date on which such payment became due and payable or the date
on which payment thereof is duly provided for, whichever occurs
later or (ii) the Holder's failure to comply with any
certification, identification, information, documentation or other
reporting requirements if compliance is required by law,
regulation, administrative practice or an applicable treaty as a
precondition to exemption from or a reduction in the rate of
deduction or withholding of, any such taxes, assessment or charge;
(4) for or on account of any estate, inheritance, gift,
sales, transfer, personal property tax or any similar tax,
assessment or other governmental charge;
(5) for or on account of any Taxes required to be
withheld by any Paying Agent from any payment to a Person in
respect of any Security, if such payment can be made to such
Person without such withholding by at least one other Paying Agent
the identity of which is provided to such Person;
(6) for or on account of any Taxes which are payable
otherwise than by withholding from a payment in respect of such
Security; or
(7) for any combination of items (1), (2), (3), (4), (5)
and (6); nor will Additional Amounts be paid with respect to any
payment on a Security to a Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such
payment to the extent such payment would be required by the laws
of Canada (or any political subdivision thereof) to be included in
the income for Canadian federal income tax purposes of a
beneficiary or settlor with respect to such fiduciary or a member
of such partnership or a beneficial owner who would not have been
entitled to payment of the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the Holder
of such Security.
At least 10 days prior to each date on which any payment under
or with respect to the Securities is due and payable, if the Corporation will be
obligated to pay Additional Amounts with respect to such payment, the
Corporation will deliver to the Trustee an Officers' Certificate stating the
fact that such Additional Amounts will be payable, the amounts so payable and
will
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set forth such other information necessary to enable the Trustee to pay such
Additional Amounts to Holders on the payment date.
The Corporation will furnish to the Holders of the Securities,
within 30 days after the date the payment of any Taxes is due pursuant to
applicable law, certified copies of tax receipts or other documents evidencing
such payment by the Corporation.
Whenever in this Indenture there is mentioned, in any context,
the payment of principal (and premium, if any), Redemption Price, interest or
any other amount payable under or with respect to any Security such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made (if
applicable).
The obligations of the Corporation under this Section 10.5
shall survive the termination of the Indenture.
Section 10.6 PAYMENT OF TAXES AND OTHER CLAIMS.
The Corporation will from time to time pay or discharge or
cause to be paid or discharged all taxes, rates, levies, assessments, ordinary
or extraordinary, government fees or dues lawfully levied, assessed or imposed
upon or in respect of its property or any part thereof or upon the income and
profits of the Corporation as and when the same become due and payable, and it
will exhibit or cause to be exhibited to the Trustee, when requested, the
receipts and vouchers establishing such payment and will duly observe and
conform to all valid requirements of any governmental authority relative to any
of the property or rights of the Corporation and all covenants, terms and
conditions upon or under which any such property or rights are held; provided,
however, that the Corporation shall have the right to contest by legal
proceedings any such taxes, rates, levies, assessments, government fees or dues,
and upon such contest, may delay or defer payment or discharge thereof.
Section 10.7 MAINTENANCE OF PROPERTIES.
The Corporation will cause all its properties to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Corporation may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; PROVIDED,
HOWEVER, that nothing in this Section shall prevent or restrict the sale,
abandonment or other disposition of any of such properties if such action is, in
the judgment of the Corporation desirable in the conduct of the business of the
Corporation.
Section 10.8 CORPORATE EXISTENCE.
Subject to Article Eight, the Corporation will at all times
(i) maintain and keep in full force and effect its corporate existence and the
rights (charter and statutory) and franchises
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of the Corporation and (ii) carry on and conduct its businesses in a proper,
efficient and business-like manner and in accordance with good business
practice; PROVIDED, HOWEVER, that the Corporation shall not be required to
preserve any such right or franchise if the Corporation shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Corporation and its Subsidiaries as a whole, as the case may be.
Section 10.9 MAINTENANCE OF BOOKS AND RECORDS.
The Corporation shall keep or cause to be kept proper books of
record and account, in which full and correct entries shall be made of all
financial transactions and the assets and business of the Corporation in
accordance with Generally Accepted Accounting Principles.
Section 10.10 RESTRICTION OF SALES AND LEASEBACK
TRANSACTIONS
The Corporation shall not, and shall not permit any Subsidiary
to, enter into any sale and leaseback transaction unless the Corporation and its
Subsidiaries comply with this restrictive covenant. A "sale and leaseback
transaction" is an arrangement between the Corporation or any Subsidiary and a
bank, insurance company or other lender or investor where the Corporation or any
Subsidiary lease real or personal property which was or will be sold by the
Corporation or any Subsidiary to that lender or investor. The Corporation can
comply with this Section 10.10 if either (i) the sale and leaseback transaction
is entered into prior to, concurrently with or within 270 days after the
acquisition, the completion of construction (including any improvements on an
existing property) or the commencement of commercial operations of the property
or (ii) the Corporation or its Subsidiaries could otherwise grant a Security
Interest on the property as permitted by the provisions of Section 10.12 hereof.
Section 10.11 INSURANCE.
The Corporation shall have in full force and effect such
policies of insurance in such amounts issued by insurers of recognized standing
covering the properties and operations of the Corporation as are customarily
held by similar corporations engaged in the same or similar business in the
localities where its properties and operations are located.
Section 10.12 NEGATIVE COVENANT.
So long as any Securities remain Outstanding the Corporation
and its Subsidiaries will not create, assume or otherwise have Outstanding any
Security Interest, except for Permitted Encumbrances, on or over its or their
respective assets (present or future) in respect of any Indebtedness of any
person unless, in the Opinion of Counsel to the Corporation or the Trustee, the
obligations of the Corporation in respect of all Securities then Outstanding
shall be secured equally and ratably therewith (either by the same instrument or
by other instrument).
Section 10.13 WAIVER OF CERTAIN COVENANTS.
The Corporation may, with respect to any series of Securities,
omit in any particular instance to comply with any term, provision or condition
which affects such series set
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forth in Section 8.4 or Sections 10.6 to 10.8, Section 10.10 and Section 10.12,
inclusive, or any covenants added to Article Ten pursuant to Section 3.1 in
connection with Securities of such series, if before the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of any series, by Act of such Holders, waive such
compliance in such instance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Corporation and the duties of the Trustee to Holders of
Securities of such series in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE 11.
REDEMPTION OF SECURITIES
Section 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 3.1 for
Securities of any series) in accordance with this Article.
Section 11.2 ELECTION TO REDEEM NOTICE TO TRUSTEE.
The election of the Corporation to redeem any Securities shall
be evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Corporation, the Corporation shall, at least 60 days prior
to the Redemption Date fixed by the Corporation (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Securities to be redeemed pursuant to Section 11.3. In the
case of any redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Corporation shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction.
Section 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by lot in such
manner as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions of the principal of Securities of such
series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 3.1.
The Trustee shall promptly notify the Corporation and the
Security Registrar (if other than the Corporation) in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
Section 11.4 NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 3.1,
notice of redemption shall be given in the manner provided for in Section 1.6
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed. Failure to give notice in the manner
provided in Section 1.6 to the Holder of any Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Securities in
the manner provided in Section 1.6 shall be conclusively presumed to have been
duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued
interest to the Redemption Date payable as provided in Section
11.6, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
holder will receive, without charge, a new Security or Securities
of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price
and accrued interest, if any, to the Redemption Date payable as
provided in Section 11.6 will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date,
(6) the Place or Places of Payment where such Securities,
maturing after the Redemption Date, are to be surrendered for
payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such
is the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for
redemption must be accompanied by all Coupons maturing
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subsequent to the Redemption Date or the amount of any such
missing Coupon or Coupons will be deducted from the Redemption
Price unless security or indemnity satisfactory to the
Corporation, the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on such Redemption
Date pursuant to Section 3.5 or otherwise, the last date, as
determined by the Corporation, on which such exchanges may be
made.
Notice of redemption of Securities to be redeemed at the
election of the Corporation shall be given by the Corporation or, at the
Corporation's request, by the Trustee in the name and at the expense of the
Corporation.
Section 11.5 DEPOSIT OF REDEMPTION PRICE.
Prior to 10:00 am (local time at place on payment) on any
Redemption Date, the Corporation shall deposit, with respect to the Securities
being redeemed, with the Trustee or with a Paying Agent (or, if the Corporation
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.3) an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 3.1 for
the Securities of such series and except, if applicable, as provided in Sections
3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the Redemption Price of, and
accrued interest, if any, on, all the Securities which are to be redeemed on
that date.
Section 11.6 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 3.1 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)) (together with accrued
interest, if any, to the Redemption Date), and from and after such date (unless
the Corporation shall default in the payment of the Redemption Price and accrued
interest, if any) such Securities shall, if the same were interest-bearing,
cease to bear interest and the Coupons for such interest appertaining to any
Bearer Securities so to be redeemed, except to the extent provided below, shall
be void. Upon surrender of any such Security for redemption in accordance with
said notice together with all Coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Corporation at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 10.2) and, unless otherwise specified as
contemplated by Section 3.1, only upon presentation and surrender of Coupons for
such interest; and PROVIDED FURTHER, that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Regular
Record Date or
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Special Record Date, as the case may be, according to their terms and the
provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Corporation and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by Coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 10.2) and, unless otherwise specified as contemplated by Section 3.1,
only upon presentation and surrender of those Coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security,
Section 11.7 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Corporation or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Corporation and the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Corporation shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series
of any authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
Section 11.8 TAX REDEMPTION.
Unless otherwise specified with respect to any Securities
pursuant to Section 3.1, the Securities of a series will be subject to
redemption at any time, in whole but not in part, at a redemption price equal to
the principal amount thereof together with accrued and unpaid interest to the
date fixed for redemption, upon the giving of a notice as described below, if
(1) the Corporation determines that (a) as a result of any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder) of
Canada or of any political subdivision or taxing authority thereof or therein
affecting taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change or amendment is announced or
becomes effective on or after the date specified pursuant to Section 3.1, if any
date is so specified, the Corporation has or will become obligated to pay, on
the next succeeding date on which interest is due, Additional Amounts pursuant
to Section 10.5 or (b) on or after the date specified pursuant to Section 3.1,
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any action has been taken by any taxing authority of, or any decision has been
rendered by a court of competent jurisdiction in, Canada or any political
subdivision or taxing authority thereof or therein, including any of those
actions specified in (a) above, whether or not such action was taken or decision
was rendered with respect to the Corporation, or any change, amendment,
application or interpretation shall be officially proposed, which, in any such
case, in the Opinion of Counsel to the Corporation of recognized standing, will
result in the Corporation becoming obligated to pay, on the next succeeding date
on which interest is due, Additional Amounts with respect to any Security of
such series and (2) in any such case, the Corporation in its business judgment
determines that such obligation cannot be avoided by the use of reasonable
measures available to the Corporation; PROVIDED HOWEVER, that (i) no such notice
of redemption may be given earlier than 60 or later than 30 days prior to the
earliest date on which the Corporation would be obligated to pay such Additional
Amounts were a payment in respect of the Securities then due, and (ii) at the
time such notice of redemption is given, such obligation to pay such Additional
Amounts remains in effect.
ARTICLE 12.
SINKING FUNDS
Section 12.1 APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 3.1 for Securities of
any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 12.2. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 12.3, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Corporation may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Corporation together in the
case of Bearer Securities of such series with all unmatured Coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the
Corporation for Securities of such series which have been redeemed either at the
election of the Corporation pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such
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Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
Section 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Corporation will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series and except, if
applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) and the
portion thereof, if any, which is to be satisfied by delivering or crediting
Securities of that series pursuant to Section 12.2 (which Securities will, if
not previously delivered, accompany such certificate) and whether the
Corporation intends to exercise its right to make a permitted optional sinking
fund payment with respect to such series. Such certificate shall be irrevocable
and upon its delivery the Corporation shall be obligated to make the cash
payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In the case of the failure of the
Corporation to deliver such certificate, the sinking fund payment due on the
next succeeding sinking fund payment date for that series shall be paid entirely
in cash and shall be sufficient to redeem the principal amount of such
Securities subject to a mandatory sinking fund payment without, with respect to
such payment date, the option to deliver or credit Securities as provided in
Section 12.2 and without the right to make any optional sinking fund payment, if
any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Corporation in the manner provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
Prior to any sinking fund payment date, the Corporation shall
pay to the Trustee or a Paying Agent (or, if the Corporation is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 10.3) in
cash a sum equal to any interest that will accrue to the date fixed for
redemption of Securities or portions thereof to be redeemed on such sinking fund
payment date pursuant to this Section 12.3.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Corporation, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or,
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at the request of the Corporation, shall be applied at any time or from time to
time to the purchase of Securities of such series, by public or private
purchase, in the open market or otherwise, at a purchase price for such
Securities (excluding accrued interest and brokerage commissions, for which the
Trustee or any Paying Agent will be reimbursed by the Corporation) not in excess
of the principal amount thereof.
ARTICLE 13.
REPAYMENT AT OPTION OF HOLDERS
Section 13.1 APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 3.1 for Securities of any series) in accordance with this Article.
Section 13.2 REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Corporation
covenants that on or before the Repayment Date it will deposit with the Trustee
or with a Paying Agent (or, if the Corporation is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.3) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 3.1 for the Securities of such series
and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e))
sufficient to pay the principal (or, if so provided by the terms of the
Securities of any series, a percentage of the principal) of and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest, if any, on,
all the Securities or portions thereof, as the case may be, to be repaid on such
date.
Section 13.3 EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the
Corporation at the Place of Payment therefor specified in the terms of such
Security (or at such other place or places or which the Corporation shall from
time to time notify the Holders of such Securities) not earlier than 45 days nor
later than 30 days prior to the Repayment Date. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered
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that is not to be repaid, must be specified. The principal amount of any
Security providing for repayment at the option of the Holder thereof may not be
repaid in part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of Securities of
the series of which such Security to be repaid is a part. Except as otherwise
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Corporation.
Section 13.4 WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Corporation on the Repayment
Date therein specified, and on and after such Repayment Date (unless the
Corporation shall default in the payment of such Securities on such Repayment
Date) such Securities shall, if the same were interest-bearing, cease to bear
interest and the Coupons for such interest appertaining to any Bearer Securities
so to be repaid, except to the extent provided below shall be void. Upon
surrender of any such Security for repayment in accordance with such provisions,
the principal amount of such Security so to be repaid shall be paid by the
Corporation, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that Coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified pursuant to Section 3.1, only upon presentation and
surrender of such Coupons; and PROVIDED FURTHER that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant Coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 13.2 an amount equal to the face amount of all such missing
Coupons, or the surrender of such missing Coupon or Coupons may be waived by the
Corporation and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing Coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER,
that interest represented by Coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 10.2) and, unless
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otherwise specified as contemplated by Section 3.1, only upon presentation and
surrender of those Coupons.
Section 13.5 SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be
repaid in part only, the Corporation shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Corporation, a new Registered Security or Securities
of the same series, of any authorized denomination specified by the Holder, in
an aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE 14.
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.1 OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 3.1
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Corporation may, at its option,
effect defeasance of the Securities of or within a series under Section 14.2, or
covenant defeasance of or within a series under Section 14.3 in accordance with
the terms of such Securities and in accordance with this Article.
Section 14.2 DEFEASANCE AND DISCHARGE.
Upon the exercise by the Corporation of the above option
applicable to this Section with respect to any Securities of or within a series,
the Corporation shall be deemed to have been discharged from its obligations
with respect to such Outstanding Securities on the date the conditions set forth
in Section 14.4 are satisfied (hereinafter, "DEFEASANCE"). For this purpose,
such defeasance means that the Corporation shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
which shall thereafter be deemed to be "Outstanding" only for the purposes of
Section 14.5 and the other Sections of this Indenture referred to in (A) and (B)
below, and to have satisfied all of its other obligations under such Securities,
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Corporation, shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of holders of such
Outstanding Securities to receive, solely from the trust fund described in
Section 14.4 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
when such payments are due, (B) the Corporation's obligations with respect to
such Securities under Sections 3.4, 3.5, 3.6, 10.2, 10.3 and 10.5 and the
Corporation's rights pursuant to Section 11.8, (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 Corporation may exercise
its option under this Section 14.2 notwithstanding the prior exercise of the
option under Section 14.3 with respect to such Securities and any related
Coupons.
Section 14.3 COVENANT DEFEASANCE.
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Upon the exercise by the Corporation of the above option
applicable to this Section with respect to any Securities of or within a series,
the Corporation shall be released from its obligations under Section 8.4 and
Sections 10.6 through 10.8, 10.10 and 10.12, and, if specified pursuant to
Section 3.1, their obligations under any other covenant, with respect to such
Outstanding Securities on and after the date the conditions set forth in Section
14.4 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and such Securities
shall thereafter be deemed not to be "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences thereof) in connection with such covenants, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities, the
Corporation may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of reference in any such covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 5.1(3) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 14.4 CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of either
Section 14.2 or Section 14.3 to any Outstanding Securities of or within a
series:
(1) The Corporation shall have irrevocably deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.7 who shall agree to
comply with the provisions of this Article Fourteen applicable to
it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such
Securities, (A) an amount (in such Currency in which such
Securities are then specified as payable at Stated Maturity), or
(B) Government Obligations applicable to such Securities
(determined on the basis of the Currency in which such Securities
are then specified as payable at Stated Maturity) which through
the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of and
premium, if any, and interest, if any, under such Securities,
money in an amount, or (C) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent
chartered accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and
discharge, (1) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities on the Stated
Maturity (or Redemption Date, if applicable) of such principal
(and premium, if any) or installment of interest, if any, and (ii)
any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities; PROVIDED that the Trustee shall
have been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments with
respect to such Securities. Before such a deposit, the Corporation
may give to the Trustee, in accordance with Section 11.2 hereof, a
notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in
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accordance with the terms of the Securities of such series and
Article Eleven hereof, which notice shall be irrevocable. Such
irrevocable redemption notice, if given, shall be given effect in
applying the foregoing.
(2) In the case of an election under Section 14.2, the
Corporation shall have delivered to the Trustee an Opinion of
Counsel of recognized standing in the United States stating that
(i) the Corporation has received from, or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date
of execution of this Indenture, there has been a change in the
applicable U.S. federal income tax law, in either case to the
effect that, and based thereon such opinion shall confirm that,
the Holders of such Outstanding Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of such defeasance and will be subject to U.S. federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not
occurred.
(3) In the case of an election under Section 14.3, the
Corporation shall have delivered to the Trustee an Opinion of
Counsel of recognized standing in the United States to the effect
that the Holders of such Outstanding Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a
result of such covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant
defeasance had not occurred.
(4) Either the Corporation has delivered to the Trustee
an Opinion of Counsel of recognized standing in Canada or a ruling
from Canada Customs and Revenue Agency to the effect that the
Holders of such Outstanding Securities will not recognize income,
gain or loss for Canadian federal, provincial or territorial
income tax or other tax purposes as a result of such defeasance or
covenant defeasance and will be subject to Canadian federal or
provincial income tax and other tax on the same amounts, in the
same manner and at the same times as would have been the case had
such defeasance or covenant defeasance, as applicable, not
occurred (and for the purposes of such opinion, such Canadian
counsel shall assume that Holders of the Securities include
Holders who are not resident in Canada).
(5) The Corporation is not an "insolvent person" within
the meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada) on the
date of such deposit or at any time during the period ending on
the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the
expiration of such period).
(6) No Event of Default or Default with respect to such
Securities shall have occurred and be continuing on the date of
such deposit or, insofar as paragraphs (6) and (7) of Section 5.1
are concerned, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of
such period).
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(7) The Corporation has delivered to the Trustee an
Opinion of Counsel to the effect that such deposit shall not cause
the Trustee or the trust so created to be subject to the
Investment Company Act of 1940, as amended.
(8) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to
which the Corporation is a party or by which it is bound.
(9) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations in connection therewith pursuant to Section 3.1.
(10) The Corporation shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for relating to either the
defeasance under Section 14.2 or the covenant defeasance under
Section 14.3 (as the case may be) have been complied with.
Section 14.5 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
10.3, all money and Government Obligations (or other property as may be provided
pursuant to Section 3.1) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
14.5, the "TRUSTEE") pursuant to Section 14.4 in respect of such Outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Corporation acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 3.1, if, after a deposit referred to in Section 14.4(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 14.4(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e)
or by the terms of any Security in respect of which the deposit pursuant to
Section 14.4(1) has been made, the indebtedness represented by such Security
shall be deemed to have been, and will be, fully discharged and satisfied
through the payment of the principal of (and premium, if any) and interest, if
any, on such Security as they become due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the third Business Day prior to each payment date,
except, with respect to a Conversion Event, for such Currency in effect (as
nearly as feasible) at the time of the Conversion Event.
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The Corporation shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 14.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Corporation from time
to time upon a Corporation Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 14.4
which, in the opinion of a nationally recognized firm of independent chartered
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance, as
applicable, in accordance with this Article.
Section 14.6 REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 14.5 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Corporation under this Indenture
and such Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 14.2 or 14.3, as the case may be, until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 14.5; PROVIDED, HOWEVER, that if the Corporation makes
any payment of principal of (or premium, if any) or interest, if any, on any
such Security following the reinstatement of its obligations, the Corporation
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 15.
MEETINGS OF HOLDERS OF SECURITIES
Section 15.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 15.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section
15.1, to be held at such time and at such place in The City of New
York or, if Securities of such series have been issued in whole or
in part as Bearer Securities, in London, England or in such place
outside the United States as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be given,
in the manner provided for in Section 1.6, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
91
(b) In case at any time the Corporation, pursuant to a
Board Resolution, or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section
15.1, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Corporation or the Holders of Securities of such
series in the amount above specified, as the case may be, may
determine the time and the place in The City of New York or, if
Securities of such series are to be issued as Bearer Securities,
in London, England (or in such place outside the United States as
the Trustee shall determine) for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
Section 15.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Corporation and its counsel.
Section 15.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series; PROVIDED, HOWEVER, that, if any action
is to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.2(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 9.2 and the second
paragraph of Section 9.2, any resolution presented to a meeting or adjourned
meeting duly reconvened at
92
which a quorum is present as aforesaid may be adopted by the affirmative vote of
the Holders of not less than a majority in principal amount of the Outstanding
Securities of such series; PROVIDED, HOWEVER, that, except as limited by the
proviso to Section 9.2, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
Coupons, whether or not such Holders were present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 15.4,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or other
action has been made, given or taken under this Indenture.
Section 15.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in
regard to proof of the holding of Securities of such series and of
the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required
by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 1.4 and the appointment of any
proxy shall be provided in the manner specified in Section 1.4 or
by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company or bank authorized by
Section 1.4 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 1.4 or other proof.
93
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Corporation or by Holders of
Securities as provided in Section 15.2(b), in which case the
Corporation or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount of Outstanding Securities of such series held or
represented by him (determined as specified in the definition of
"Outstanding" in Section 1.1); PROVIDED, HOWEVER, that no vote
shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 15.2 at which a quorum is present
may be adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such
series represented at the meeting; and the meeting may be held as
so adjourned without further notice.
Section 15.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 15.2 and, if applicable, Section 15.4.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Corporation, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
* * * * *
94
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
TRANSALTA CORPORATION,
as Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive
Officer
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Assistant Vice President
95
EXHIBIT A
FORM OF SECURITY
-------------------------------------------------------------------------------
CUSIP:
[INSERT TITLE OF SECURITY]
No. $[ ]
TRANSALTA CORPORATION
promises to pay to Cede & Co.
or registered assigns,
the principal sum of [ ].
Interest Payment Dates: [ ]
Record Dates: [ ]
Dated:
TRANSALTA CORPORATION
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
THE BANK OF NEW YORK,
as Trustee
By: ______________________________
Authorized Signatory
[FORM OF REVERSE]
*[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
TO THE CORPORATION (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS CERTIFICATE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC
TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
Capitalized terms used herein have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
TransAlta Corporation, a corporation duly organized and
existing under the laws of Canada (herein called the "Corporation", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to [Cede & Co.] *, or registered assigns,
the principal sum of *$____________ (__________________________________________
DOLLARS) on [date and year], at the office or agency of the Corporation referred
to below, and to pay interest thereon on [date and year] and semi-annually
thereafter, on [date] and [date] in each year, commencing [date and year],** or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at the rate of ___% per annum, until the principal hereof is
paid or duly provided for, and (to the extent lawful) to pay on demand interest
on any overdue interest at the rate borne by the Securities from the date on
which such overdue interest becomes payable to the date payment of such interest
has been made or duly provided for. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the [date] or [date] (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the Holder on such Regular Record Date, and
such defaulted interest, and (to the extent lawful) interest on such defaulted
--------
* Include if Securities are to be issued in global form. At the time of
this writing, DTC will not accept global securities with an aggregate
principal amount in excess of U.S.$500,000,000. If the aggregate
principal amount of your offering exceeds this amount, use more than
one global security.
** Insert date from which interest is to accrue or, if the Securities are
to be sold "flat", the closing date of the offering.
A-1
interest at the rate borne by the Securities, may be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Securities not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such, exchange, all as more fully
provided in said Indenture. Reference is hereby made to the further provisions
of this Security set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place.
This Security is one of a duly authorized issue of securities
of the Corporation designated as its ____% [Debentures] [Notes] [due] [Due]
_______________________(herein called the "Securities"), limited (except as
otherwise provided in the Indenture referred to below) in aggregate principal
amount to $[___,000,000], which may be issued under an indenture (herein called
the "Indenture") dated as of _________ __, 2002 among the Corporation and The
Bank of New York, as trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties, obligations and immunities
thereunder of the Corporation, the Trustee and the Holders of the Securities,
and of the terms upon which the Securities are, and are to be, authenticated and
delivered. [This Security is a global Security representing $[___, ___,000]
aggregate principal amount [at maturity]* of the Securities.]**
Payment of the principal of (and premium, if any, on) and
interest on this Security will be made at the office or agency of the
Corporation maintained for that purpose in New York, New York or at such other
office or agency of the Corporation as may be maintained for such purpose, in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that
payment of the principal (and premium, if any) and interest may be made at the
option of the Corporation (i) by check mailed to the address of the Person
entitled thereto as such address shall appear on the Security Register or (ii)
by wire transfer to an account maintained by the payee located in the United
States; PROVIDED, that principal paid in relation to any Security, redeemed at
the option of the Corporation or upon Maturity, shall be paid to the holder of
such Security only upon presentation and surrender of such Security to such
office of agency referred to above.
[The Securities are subject to redemption upon not less than
30 nor more than 60 days' notice, at any time after [date and year], as a whole
or in part, at the election of the Corporation[, at a Redemption Price equal to
the percentage of the principal amount set forth below if redeemed during the
12-month period beginning [date], of the years indicated:
Redemption Redemption
Year Price Year Price
----- ---------- ---- ----------
--------
* Include if a discount security
** Include in a global security
A-2
Price Price
---------------- -----------------
% %
% %
% %
A-3
and thereafter] at 100% of the principal amount, together in the case of any
such redemption with accrued interest, if any, to the Redemption Date, all as
provided in the Indenture.]
[The Securities are also subject to redemption on [date] in
each year commencing in [year] through the operation of a sinking fund, at a
Redemption Price equal to 100% of the principal amount, together with accrued
interest to the Redemption Date; all as provided in the Indenture. The sinking
fund provides for the [mandatory] redemption on [date] in each year beginning
with the year [year] of $ _____ aggregate principal amount of Securities. [In
addition, the Corporation may, at its option, elect to redeem up to an
additional $______ aggregate principal amount of Securities on any such date.]
Securities acquired or redeemed by the Corporation (other than through operation
of the sinking fund) may be credited against subsequent [mandatory] sinking fund
payments.]*
[The Securities are subject to repayment at the option of the
Holders thereof on [Repayment Date(s)] at a Repayment Price equal to _____% of
the principal amount, together with accrued interest to the Repayment Date, all
as provided in the Indenture. To be repaid at the option of the Holder, this
Security, with the "Option to Elect Repayment" form duly completed by the Holder
hereof (or the Holder's attorney duly authorized in writing), must be received
by the Corporation at its office or agency maintained for that purpose in New
York, New York not earlier than 45 days nor later than 30 days prior to the
Repayment Date. Exercise of such option by the Holder of this Security shall be
irrevocable unless waived by the Corporation.]**
In the case of any redemption [repayment] of Securities,
interest installments whose Stated Maturity is on or prior to the Redemption
Date [Repayment Date] will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption [repayment] provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date
[Repayment Date].
In the event of redemption [repayment] of this Security in
part only, a new Security or Securities for the unredeemed [unpaid] portion
hereof shall be issued in the name of the Holder hereof upon the cancellation
hereof.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness of the Corporation on this Security and (b)
certain restrictive covenants and the related Defaults and Events of Default,
upon compliance by the Corporation, with certain conditions set forth therein,
which provisions apply to this Security.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Corporation and the
--------
* Include if the Securities are subject to a sinking fund.
** Include if the Securities are subject to repayment at the option of
the Holders.
A-4
rights of the Holders under the Indenture at any time by the Corporation and the
Trustee with the consent of the Holders of a majority in aggregate principal
amount of all affected Securities at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities affected thereby, to waive compliance by the
Corporation with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by or on
behalf of the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Corporation, which is absolute and unconditional, to pay the principal of (and
premium, if any, on) and interest on this Security at the times, place, and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable on
the Security Register of the Corporation, upon surrender of this Security for
registration of transfer at the office or agency of the Corporation maintained
for such purpose in New York, New York duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Corporation and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Securities are issuable only in registered form without
Coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
the Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Corporation may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to the time of due presentment of this Security for
registration of transfer, the Corporation, the Trustee and any agent of the
Corporation or the Trustees may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Corporation, the Trustee nor any agent shall be
affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months. For the purposes only of disclosure
required by the INTEREST ACT (Canada), and without affecting the amount of
interest payable to any Holder or the calculation of interest on any Securities,
whenever interest to be paid under a Security is to be calculated on the basis
of a year of 360 days consisting of twelve 30-day months, the yearly rate of
interest to
A-5
which the rate determined pursuant to such calculation is equivalent during any
particular period is the rate so determined multiplied by a fraction of which:
(a) the numerator is the product of:
(i) the actual number of days in the calendar year in
which the same is to be ascertained, and
(ii) the sum of (A) the product of (x) 30 and (y) the
number of complete months elapsed in the relevant period and (B) the
number of days elapsed in any incomplete month in the relevant period,
and
(b) the denominator is the product of (i) 360 and (ii) the number
of days in the relevant period.
*[If at any time, (i) the Depositary notifies the Corporation
that it is unwilling or unable or no longer qualifies to continue as Depositary
or if at any time the Depositary shall no longer be registered or in good
standing under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation and a successor depositary is not appointed by
the Corporation within 90 days after the Corporation receives such notice or
becomes aware of such condition, as the case may be, (ii) the Corporation
determines that the Securities shall no longer be represented by a global
Security or Securities, or (iii) any Event of Default shall have occurred then
in such event the Corporation will execute and the Trustee will authenticate and
deliver Securities in definitive registered form, in authorized denominations,
and in an aggregate principal amount equal to the principal amount of this
Security in exchange for this Security. Such Securities in definitive registered
form shall be registered in such names and issued in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.]
The Indenture and this Security shall be governed by and
construed in accordance with the laws of the State of New York.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
--------
* Include for global security
A-6
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Corporation to repay the within Security [(or the portion thereof specified
below)], pursuant to its terms, on the "Repayment Date" first occurring after
the date of receipt of the within Security as specified below, at a Repayment
Price equal to ___% of the principal amount thereof, together with accrued
interest to the Repayment Date, to the undersigned at:
(Please Print or Type Name and Address of the Undersigned.)
For this Option to Elect Repayment to be effective, this
Security with the Option to Elect Repayment duly completed must be received not
earlier than 45 days prior to the Repayment Date and not later than 30 days
prior to the Repayment Date by the Corporation at its office or agency in [the
Borough of Manhattan, New York, New York].
If less than the entire principal amount of the within
Security is to be repaid, specify the portion thereof (which shall be $1,000 or
an integral multiple thereof) which is to be repaid: $__________.
If less than the entire principal amount of the within
Security is to be repaid, specify the denomination(s) of the Security(ies) to be
issued for the unpaid amount ($1,000 or any integral multiple of $1,000):
$__________.
Dated:
Note: The signature to this Option to Elect
Repayment must correspond with the name
as written upon the face of the within
Security in every particular without
alterations or enlargement or any change
whatsoever.]
A-7
ASSIGNMENT FORM*
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
----------------------------------------------------
----------------------------------------------------
(INSERT ASSIGNEE'S SOC. SEC., SOC. INS. OR TAX ID NO.)
(Print or type assignee's name, address and zip or postal code)
and irrevocably appoint _______________________________________________________
_____________agent to transfer this Security on the books of the Corporation.
The agent may substitute another to act for him.
Dated: Your Signature: ________________________________________________________
(Sign exactly as name appears on the other side of this
Security)
Signature Guarantee:_____________________________
(Signature must be guaranteed by a
commercial bank or trust company, by a
member or members' organization of The
New York Stock Exchange or by another
eligible guarantor institution as
defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934)
--------
* Omit if a global security.
A-8
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER
SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES TO BE DELIVERED]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise TransAlta Coproration or its agent that such financial
institution, will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applied as of such date.
This certificate excepts and does not relate to [U.S .$]______
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest in
a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or
B-1
threatened in connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated:
[To be dated no earlier than
the 15th day prior to (i) the
Exchange Date or (ii) the
relevant Interest Payment
Date occurring prior to the
Exchange Date, as
applicable]
[Name of Person Making Certification]
----------------------------------------
(Authorized Signatory)
Name:
Title:
B-2
EXHIBIT B-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION
OF SECURITIES TO BE DELIVERED]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
_________ principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise
TransAlta
Corporation or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
B-2-1
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[To be dated no earlier than the
Exchange Date or the relevant Interest
Payment Date occurring prior to the
Exchange Date, as applicable]
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, as Operator
of the Euroclear System]
[Clearstream]
By: _________________________________
B-2-2