EXHIBIT 7.1
-----------
--------------------------------------------------------------------------------
ENCANA CORPORATION,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
_________
INDENTURE
Dated as of __________, 200_
Providing for the issue of
Debt Securities
in unlimited principal amount
_________
--------------------------------------------------------------------------------
ENCANA CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT
OF 1939 AND INDENTURE, DATED AS OF [__________], 2004
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
Section 310(a)(1) .................................. 608(a)
(a)(2) .................................. 608(a)
(b) .................................. 609,610
Section 312(c) .................................. 703
Section 314(a) .................................. 703
(a)(4) .................................. 1004
(c)(1) .................................. 102
(c)(2) .................................. 102
(e) .................................. 102
Section 315(b) .................................. 601
Section 316(a)(last
Sentence) .................................. 101 ("Outstanding")
(a)(1)(A) .................................. 502, 512
(a)(1)(B) .................................. 513
(b) .................................. 508
(c) .................................. 104(e)
Section 317(a)(1) .................................. 503
(a)(2) .................................. 504
(b) .................................. 1003
Section 318(a) .................................. 111
---------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TABLE OF CONTENTS
PAGE
PARTIES........................................................................1
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions......................................................1
"Accelerated Indebtedness".......................................2
"Act"............................................................2
"Additional Amounts".............................................2
"Affiliate"......................................................2
"Authenticating Agent"...........................................2
"Authorized Newspaper"...........................................2
"Bearer Security"................................................2
"Board of Directors".............................................2
"Board Resolution"...............................................2
"Business Day"...................................................2
"calculation period".............................................3
"Canadian Taxes".................................................3
"Clearstream"....................................................3
"Commission".....................................................3
"Common Depositary"..............................................3
"Company"........................................................3
"Company Officer"................................................3
"Company Request" or "Company Order".............................3
"Consolidated Net Tangible Assets"...............................3
"Conversion Date"................................................3
"Conversion Event"...............................................4
"Corporate Trust Office".........................................4
"corporation"....................................................4
"coupon".........................................................4
"covenant defeasance"............................................4
"Currency".......................................................4
"Current Assets".................................................4
"Default"........................................................4
--------------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
"Defaulted Interest".............................................4
"defeasance".....................................................4
"Depositary" or "Depositary for Securities"......................4
"Dollar" or "$"..................................................4
"Dollar Equivalent of the Foreign Currency"......................4
"Election Date"..................................................4
"Euroclear"......................................................4
"Event of Default"...............................................4
"Exchange Act"...................................................5
"Exchange Date"..................................................5
"Exchange Rate Agent"............................................5
"Exchange Rate Officer's Certificate"............................5
"Excluded Holder"................................................5
"Extension Notice"...............................................5
"Extension Period"...............................................5
"Facilities".....................................................5
"Final Maturity".................................................5
"Financial Instrument Obligations"...............................5
"First Currency".................................................6
"Foreign Currency"...............................................6
"GAAP"...........................................................6
"Government Obligations".........................................6
"Holder".........................................................6
"Indenture"......................................................6
"Indexed Security"...............................................7
"interest".......................................................7
"Interest Payment Date"..........................................7
"Judgment Currency"..............................................7
"Lien"...........................................................7
"Market Exchange Rate"...........................................7
"Maturity".......................................................8
"Non-Recourse Debt"..............................................8
"Notice of Default"..............................................8
"Officer's Certificate"..........................................8
"Opinion of Counsel".............................................8
"Optional Reset Date"............................................8
"Original Issue Discount Security"...............................8
"Original Stated Maturity".......................................8
"Other Currency".................................................8
"Outstanding"....................................................8
"Paying Agent"..................................................10
"Permitted Liens"...............................................10
"Person"........................................................12
"Place of Payment"..............................................12
"Predecessor Security"..........................................12
"Purchase Money Mortgage".......................................12
"Redemption Date"...............................................12
"Redemption Price"..............................................12
iii
"Registered Security"...........................................12
"Regular Record Date"...........................................12
"Repayment Date"................................................13
"Repayment Price"...............................................13
"Required Currency".............................................13
"Reset Notice"..................................................13
"Responsible Officer"...........................................13
"Restricted Property"...........................................13
"Restricted Securities".........................................13
"Restricted Subsidiary".........................................13
"Securities"....................................................13
"Security Register" and "Security Registrar"....................13
"Shareholders' Equity"..........................................14
"Special Record Date"...........................................14
"Stated Maturity"...............................................14
"Subsequent Interest Period"....................................14
"Subsidiary"....................................................14
"Substantial Completion"........................................14
"Trust Indenture Act" or "TIA"..................................14
"Trustee".......................................................14
"UCC"...........................................................14
"United States".................................................14
"United States person"..........................................14
"Unrestricted Subsidiary".......................................14
"Valuation Date"................................................15
"Vice-President"................................................15
"Voting Shares".................................................15
"Yield to Maturity".............................................15
Section 102. Compliance Certificates and Opinions............................15
Section 103. Form of Documents Delivered to Trustee..........................16
Section 104. Acts of Holders.................................................16
Section 105. Notices, etc. to Trustee and Company............................18
Section 106. Notice to Holders; Waiver.......................................18
Section 107. Effect of Headings and Table of Contents........................19
Section 108. Successors and Assigns..........................................19
Section 109. Separability Clause.............................................19
Section 110. Benefits of Indenture...........................................20
Section 111. Governing Law...................................................20
Section 112. Legal Holidays..................................................20
Section 113. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities............................................20
Section 114. Conversion of Currency..........................................21
Section 115. Currency Equivalent.............................................22
Section 116. Incorporators, Shareholders, Officers and Directors
of the Company Exempt from Individual Liability.................22
Section 117. Conflict with the Trust Indenture Act...........................23
iv
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.................................................23
Section 202. Form of Trustee's Certificate of Authentication.................23
Section 203. Securities Issuable in Global Form..............................24
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series............................25
Section 302. Denominations...................................................28
Section 303. Execution, Authentication, Delivery and Dating..................29
Section 304. Temporary Securities............................................31
Section 305. Registration, Registration of Transfer and Exchange.............33
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................36
Section 307. Payment of Principal and Interest; Interest Rights
Preserved; Optional Interest Reset..............................38
Section 308. Optional Extension of Stated Maturity...........................40
Section 309. Persons Deemed Owners...........................................41
Section 310. Cancellation....................................................42
Section 311. Computation of Interest.........................................42
Section 312. Currency and Manner of Payments in Respect of Securities........42
Section 313. Appointment and Resignation of Successor Exchange Rate Agent....45
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.........................45
Section 402. Application of Trust Money......................................47
ARTICLE FIVE
REMEDIES
Section 501. Events of Default...............................................47
Section 502. Acceleration of Maturity; Rescission and Annulment..............49
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee......................................................50
Section 504. Trustee May File Proofs of Claim................................51
Section 505. Trustee May Enforce Claims Without Possession of Securities.....51
Section 506. Application of Money Collected..................................52
Section 507. Limitation on Suits.............................................52
Section 508. Unconditional Right of Holders to Receive Principal
(Premium, if any) and Interest..................................53
Section 509. Restoration of Rights and Remedies..............................53
Section 510. Rights and Remedies Cumulative..................................53
Section 511. Delay or Omission Not Waiver....................................53
v
Section 512. Control by Holders..............................................53
Section 513. Waiver of Past Defaults.........................................54
Section 514. Waiver of Stay or Extension Laws................................54
Section 515. Undertaking for Costs...........................................54
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults..............................................55
Section 602. Certain Duties and Responsibilities of Trustee..................55
Section 603. Certain Rights of Trustee.......................................56
Section 604. Trustee Not Responsible for Recitals or Issuance of Securities..58
Section 605. May Hold Securities.............................................58
Section 606. Money Held in Trust.............................................58
Section 607. Compensation and Reimbursement..................................58
Section 608. Corporate Trustee Required; Eligibility.........................59
Section 609. Resignation and Removal; Appointment of Successor...............59
Section 610. Acceptance of Appointment by Successor..........................61
Section 611. Merger, Conversion, Consolidation or Succession to Business.....62
Section 612. Authorization of Authenticating Agent...........................62
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.......64
Section 702. Preservation of List of Names and Addresses of Holders..........64
Section 703. Disclosure of Names and Addresses of Holders....................65
Section 704. Reports by Trustee..............................................65
Section 705. Reports by the Company..........................................65
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc., Only on Certain Terms............66
Section 802. Successor Person Substituted....................................67
Section 803. Securities to Be Secured in Certain Events......................67
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders..............68
Section 902. Supplemental Indentures with Consent of Holders.................69
Section 903. Execution of Supplemental Indentures............................70
Section 904. Effect of Supplemental Indentures...............................71
Section 905. Conformity with the Trust Indenture Act.........................71
vi
Section 906. Reference in Securities to Supplemental Indentures..............71
Section 907. Notice of Supplemental Indentures...............................71
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal (Premium, if any) and Interest.............71
Section 1002. Maintenance of Office or Agency.................................71
Section 1003. Money for Securities Payments to Be Held in Trust...............73
Section 1004. Statement as to Compliance......................................74
Section 1005. Additional Amounts..............................................74
Section 1006. Limitation on Liens.............................................76
Section 1007. Payment of Taxes................................................77
Section 1008. Corporate Existence.............................................77
Section 1009. Waiver of Certain Covenants.....................................77
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article........................................77
Section 1102. Election to Redeem; Notice to Trustee...........................77
Section 1103. Selection by Trustee of Securities to Be Redeemed...............78
Section 1104. Notice of Redemption............................................78
Section 1105. Deposit of Redemption Price.....................................79
Section 1106. Securities Payable on Redemption Date...........................79
Section 1107. Securities Redeemed in Part.....................................80
Section 1108. Tax Redemption..................................................81
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article........................................81
Section 1202. Satisfaction of Sinking Fund Payments with Securities...........82
Section 1203. Redemption of Securities for Sinking Fund.......................82
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
Section 1301. Applicability of Article........................................83
Section 1302. Repayment of Securities.........................................83
Section 1303. Exercise of Option..............................................84
Section 1304. When Securities Presented for Repayment Become Due and Payable..84
Section 1305. Securities Repaid in Part.......................................85
vii
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Company's Option to Effect Defeasance or Covenant Defeasance....85
Section 1402. Defeasance and Discharge........................................85
Section 1403. Covenant Defeasance.............................................86
Section 1404. Conditions to Defeasance or Covenant Defeasance.................86
Section 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...........................88
Section 1406. Reinstatement...................................................89
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.......................90
Section 1502. Call, Notice and Place of Meetings..............................90
Section 1503. Persons Entitled to Vote at Meetings............................90
Section 1504. Quorum; Action..................................................90
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.........................................92
Section 1506. Counting Votes and Recording Action of Meetings.................93
Section 1507. Counterparts....................................................93
TESTIMONIUM...................................................................94
SIGNATURES....................................................................94
FORMS OF CERTIFICATION.................................................EXHIBIT A
INDENTURE, dated as of _______, 200_ between ENCANA
CORPORATION, a corporation duly organized and existing under the laws of Canada
(herein called the "COMPANY"), having its principal office at 1800, ▇▇▇ - ▇▇▇
▇▇▇▇▇▇ ▇.▇., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and THE BANK OF NEW YORK,
a New York Corporation, as trustee (herein called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"SECURITIES"), which may be convertible into or exchangeable for any securities
of any Person (including the Company), to be issued in one or more series as
provided in this Indenture.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined below) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(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;
2
(5) words implying any gender shall include all genders; and
(6) the words Subsection, Section and Article refer to the
Subsections, Sections and Articles, respectively, of this Indenture
unless otherwise noted.
Certain terms, used principally in Article Three, are defined
in that Article.
"ACCELERATED INDEBTEDNESS" has the meaning specified in
Section 501.
"ACT" when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section
1005.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the
Trustee to act on behalf of the Trustee pursuant to Section 612 to authenticate
Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of
Canada, will, if practicable, be The Globe & Mail, in the case of New York, New
York will, if practicable, be The Wall Street Journal (Eastern Edition), in the
case of the United Kingdom will, if practicable, be The Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg
(Wort), in the English language or in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in
Canada, New York, New York, the United Kingdom or Luxembourg, as applicable.
Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers
in the same city meeting the foregoing requirements and in each case on any
Business Day.
"BEARER SECURITY" means any Security except a Registered
Security.
"BOARD OF DIRECTORS" means either the board of directors of
the Company or any duly authorized committee of that board of directors.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Corporate Secretary or any Assistant Corporate Secretary of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than Saturday,
3
Sunday or any other day which is not a day on which commercial banking
institutions in that Place of Payment or other location are closed or required
by any applicable law or regulation or executive order to close.
"CALCULATION PERIOD" has the meaning specified in Section 311.
"CANADIAN TAXES" has the meaning specified in Section 1005.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or
its successor.
"COMMISSION" means the U.S. Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMMON DEPOSITARY" has the meaning specified in Section 304.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY OFFICER" means any one of the Chairman, President,
Chief Executive Officer, Chief Financial Officer, Vice-President, Treasurer,
Assistant Treasurer, Corporate Secretary or Assistant Corporate Secretary of the
Company.
"COMPANY REQUEST" OR "COMPANY ORDER" means a written request
or order signed in the name of the Company by a Company Officer and delivered to
the Trustee.
"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of
assets of any Person on a consolidated basis (less applicable reserves and other
properly deductible items), after deducting therefrom:
(i) all current liabilities (excluding any indebtedness
classified as a current liability and any current
liabilities which are by their terms extendible or
renewable at the option of the obligor thereon to a
time more than 12 months after the time as of which
the amount thereof is being computed);
(ii) all goodwill, trade names, trademarks, patents,
unamortized debt discounts and expenses and other
like intangibles; and
(iii) appropriate adjustments on account of minority
interests of other persons holding shares of the
Subsidiaries of such Person,
in each case, as shown on the most recent annual audited or quarterly unaudited
consolidated balance sheet of such Person computed in accordance with GAAP.
"CONVERSION DATE" has the meaning specified in Section 312(d).
4
"CONVERSION EVENT" means the cessation of use of a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institution of or within the international
banking community for the settlement of transactions.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee, at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the
Holders and the Company).
"CORPORATION" includes corporations, associations, companies
and business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"COVENANT DEFEASANCE" has the meaning specified in Section
1403.
"CURRENCY" means any currency or currencies or composite
currency issued by the government of one or more countries or by any recognized
confederation or association of such governments.
"CURRENT ASSETS" means assets which in the ordinary course of
business are expected to be realized in cash or sold or consumed within 12
months.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" OR "DEPOSITARY FOR SECURITIES" means The
Depository Trust Company, or any successor thereto or any other Person
designated pursuant to Section 305.
"DOLLAR" OR "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be
determined as specified in Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(g).
"EUROCLEAR" means Euroclear Bank S.A./N.A., or its successor
as operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
5
"EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as amended.
"EXCHANGE DATE" has the meaning specified in Section 304.
"EXCHANGE RATE AGENT" means, with respect to Securities of or
within any series, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York clearing house bank, designated pursuant to
Section 301 or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex,
facsimile or a certificate setting forth (i) the applicable Market Exchange Rate
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate, sent (in the case of a telex
or facsimile) or signed (in the case of a certificate) by the Treasurer, any
Vice-President or any Assistant Treasurer of the Company.
"EXCLUDED HOLDER" has the meaning specified in Section 1005.
"EXTENSION NOTICE" has the meaning specified in Section 308.
"EXTENSION PERIOD" has the meaning specified in Section 308.
"FACILITIES" means any drilling equipment, production
equipment and platforms or mining equipment; pipelines, pumping stations and
other pipeline facilities; terminals, warehouses and storage facilities; bulk
plants; production, separation, dehydration, extraction, treating and processing
facilities; gasification or natural gas liquefying facilities, flares, stacks
and burning towers; floatation ▇▇▇▇▇, crushers and ore handling facilities; tank
cars, tankers, barges, ships, trucks, automobiles, airplanes and other marine,
automotive, aeronautical and other similar moveable facilities or equipment;
computer systems and associated programs or office equipment; roads, airports,
docks (including drydocks); reservoirs and waste disposal facilities; sewers;
generating plants (including power plants) and electric lines; telephone and
telegraph lines, radio and other communications facilities; townsites, housing
facilities, recreation halls, stores and other related facilities; and similar
facilities and equipment of or associated with any of the foregoing.
"FINAL MATURITY" has the meaning specified in Section 308.
"FINANCIAL INSTRUMENT OBLIGATIONS" means obligations arising
under:
(i) interest rate swap agreements, forward rate
agreements, floor, cap or collar agreements, futures
or options, insurance or other similar agreements or
arrangements, or any combination thereof, entered
into by a Person relating to interest rates or
pursuant to which the price, value or amount payable
thereunder is dependent or based upon interest rates
in effect from time to time or fluctuations in
interest rates occurring from time to time;
6
(ii) currency swap agreements, cross-currency agreements,
forward agreements, floor, cap or collar agreements,
futures or options, insurance or other similar
agreements or arrangements, or any combination
thereof, entered into by a Person relating to
currency exchange rates or pursuant to which the
price, value or amount payable thereunder is
dependent or based upon currency exchange rates in
effect from time to time or fluctuations in currency
exchange rates occurring from time to time; and
(iii) commodity swap or hedging agreements, floor, cap or
collar agreements, commodity futures or options or
other similar agreements or arrangements, or any
combination thereof, entered into by a Person
relating to one or more commodities or pursuant to
which the price, value or amount payable thereunder
is dependent or based upon the price of one or more
commodities in effect from time to time or
fluctuations in the price of one or more commodities
occurring from time to time.
"FIRST CURRENCY" has the meaning specified in Section 115.
"FOREIGN CURRENCY" means any Currency other than the Dollar.
"GAAP" means generally accepted accounting principles in
Canada which are in effect from time to time, unless such Person's most recent
audited or quarterly unaudited financial statements are not prepared in
accordance with generally accepted accounting principles in Canada, in which
case GAAP shall mean generally accepted accounting principles in the United
States in effect from time to time.
"GOVERNMENT OBLIGATIONS" means, unless otherwise specified
with respect to any series of Securities pursuant to Section 301, securities
which are (i) direct obligations of the government which issued the Currency in
which the Securities of a particular series are payable or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the government which issued the Currency in which the Securities of such series
are payable, the payment of which is unconditionally guaranteed by such
government, which, in either case, are full faith and credit obligations of such
government payable in such Currency and are not callable or redeemable at the
option of the issuer thereof and shall also include a depository receipt issued
by a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Obligation or the specific payment of interest or principal of
the Government Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular
7
series of Securities established as contemplated by Section 301; PROVIDED,
HOWEVER, that, if at any time more than one Person is acting as Trustee under
this instrument, "Indenture" shall mean, with respect to any one or more series
of Securities for which such Person is Trustee, this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
for which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or terms
adopted by means of one or more indentures supplemental hereto executed and
delivered after such Person had become such Trustee but to which such Person, as
such Trustee, was not a party.
"INDEXED SECURITY" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"INTEREST", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity at the rate prescribed in such Original Issue
Discount Security.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"JUDGMENT CURRENCY" has the meaning specified in Section 114.
"LIEN" means, with respect to any properties or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, security interest,
lien, charge, encumbrance, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever on or with respect to
such properties or assets (including, without limitation, any conditional sale
or other title retention agreement having substantially the same economic effect
as any of the foregoing).
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion of
Dollars into any Foreign Currency, the noon (New York, New York time) buying
rate for such Foreign Currency for cable transfers quoted in New York, New York
as certified for customs purposes by the Federal Reserve Bank of New York and
(ii) for any conversion of one Foreign Currency into Dollars or another Foreign
Currency, the spot rate at noon local time in the relevant market at which, in
accordance with normal banking procedures, the Dollars or Foreign Currency into
which conversion is being made could be purchased with the Foreign Currency from
which conversion is being made from major banks located in either ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ or any other principal market for Dollars or such
purchased Foreign Currency, in each case determined by the Exchange Rate Agent.
Unless otherwise specified with respect to any Securities pursuant to Section
301, in the event of the unavailability of any of the exchange rates provided
for in the foregoing clauses (i) and (ii), the Exchange Rate Agent shall use, in
its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York as of the most recent available date, or
quotations from one or more major banks in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
or another principal market for the Currency in question, or such other
8
quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise
specified by the Exchange Rate Agent, if there is more than one market for
dealing in any Currency by reason of foreign exchange regulations or otherwise,
the market to be used in respect of such Currency shall be that upon which a
non-resident issuer of securities designated in such Currency would purchase
such Currency in order to make payments in respect of such securities.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise.
"NON-RECOURSE DEBT" means indebtedness to finance the
creation, development, construction or acquisition of properties or assets and
any increases in or extensions, renewals or refinancings of such indebtedness,
provided that the recourse of the lender thereof (including any agent, trustee,
receiver or other Person acting on behalf of such lender) in respect of such
indebtedness is limited in all circumstances to the properties or assets
created, developed, constructed or acquired in respect of which such
indebtedness has been incurred and to the receivables, inventory, equipment,
chattels payable, contracts, intangibles and other assets, rights or collateral
connected with the properties or assets created, developed, constructed or
acquired and to which such lender has recourse.
"NOTICE OF DEFAULT" has the meaning specified in Section 501.
"OFFICER'S CERTIFICATE" means a certificate signed by any
Company Officer and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be acceptable to the Trustee, acting reasonably.
"OPTIONAL RESET DATE" has the meaning specified in Section
307.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"ORIGINAL STATED MATURITY" has the meaning specified in
Section 308.
"OTHER CURRENCY" has the meaning specified in Section 115.
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for which money in
the necessary amount relating to payment, redemption
or repayment at the option of the Holders has been
deposited with the Trustee or any Paying Agent (other
than the
9
Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto; PROVIDED that,
if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has
effected defeasance and/or covenant defeasance as
provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it
that such Securities are held by a protected
purchaser (as defined in Article 8 of the UCC) in
whose hands such Securities are valid obligations of
the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (A) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (B) the principal amount of any Security denominated in
a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent as of such date of
original issuance of the amount determined as provided in clause (A) above) of
such Security, (C) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Security pursuant to Section 301, and (D) Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in making such
calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor.
10
"PAYING AGENT" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (or premium,
if any) or interest, if any, on any Securities on behalf of the Company.
"PERMITTED LIENS" of any Person at any particular time means:
(i) Liens existing as of the date of this Indenture, or
arising thereafter pursuant to contractual
commitments entered into prior to such date;
(ii) Liens on Current Assets given in the ordinary course
of business to any financial institution or others to
secure any indebtedness payable on demand or maturing
(including any right of extension or renewal) within
12 months from the date such indebtedness is
incurred;
(iii) Liens in connection with indebtedness, which, by its
terms, is Non-Recourse Debt to the Company or any of
its Subsidiaries;
(iv) Liens existing on property or assets at the time of
acquisition (including by way of lease) by such
Person, PROVIDED that such Liens were not incurred in
anticipation of such acquisition;
(v) Liens or obligations to incur Liens (including under
indentures, trust deeds and similar instruments) on
property or assets of another Person existing at the
time such other Person becomes a Subsidiary of such
Person, or is liquidated or merged into, or
amalgamated or consolidated with, such Person or
Subsidiary of such Person or at the time of the sale,
lease or other disposition to such Person or
Subsidiary of such Person of all or substantially all
of the properties and assets of such other Person,
PROVIDED that such Liens were not incurred in
anticipation of such other Person becoming a
Subsidiary of such Person;
(vi) Liens upon property or assets of whatsoever nature
other than Restricted Property;
(vii) Liens upon property, assets or facilities used in
connection with, or necessarily incidental to, the
purchase, sale, storage, transportation or
distribution of oil or gas, or the products derived
from oil or gas;
(viii) Liens arising under partnership agreements, oil and
natural gas leases, overriding royalty agreements,
net profits agreements, production payment
agreements, royalty trust agreements, master limited
partnership agreements, farm-out agreements, division
orders, contracts for the sale, purchase, exchange,
storage, transportation, distribution, gathering or
processing of Restricted Property, unitizations and
pooling designations, declarations, orders and
agreements, development agreements, operating
agreements, production sales contracts (including
security in respect of take or pay or similar
obligations thereunder), area of mutual interest
agreements, natural gas balancing or deferred
production agreements, injection, repressuring and
recycling agreements, salt water or other
11
disposal agreements, seismic or geophysical permits
or agreements, which in each of the foregoing cases
is customary in the oil and natural gas business, and
other agreements which are customary in the oil and
natural gas business, PROVIDED in all instances that
such Lien is limited to the property or assets that
are the subject of the relevant agreement;
(ix) Liens on assets or property (including oil sands
property) securing: (A) all or any portion of the
cost of acquisition (directly or indirectly),
surveying, exploration, drilling, development,
extraction, operation, production, construction,
alteration, repair or improvement of all or any part
of such assets or property, the plugging and
abandonment of ▇▇▇▇▇ and the decommissioning or
removal of structures or facilities located thereon,
and the reclamation and clean-up of such properties,
facilities and interests and surrounding lands
whether or not owned by the Company or its Restricted
Subsidiaries, (B) all or any portion of the cost of
acquiring (directly or indirectly), developing,
constructing, altering, improving, operating or
repairing any assets or property (or improvements on
such assets or property) used or to be used in
connection with such assets or property, whether or
not located (or located from time to time) at or on
such assets or property, and (C) indebtedness
incurred by the Company or any of its Subsidiaries to
provide funds for the activities set forth in clauses
(A) and (B) above, provided such indebtedness is
incurred prior to, during or within two years after
the completion of acquisition, construction or such
other activities referred to in clauses (A) and (B)
above, and (D) indebtedness incurred by the Company
or any of its Subsidiaries to refinance indebtedness
incurred for the purposes set forth in clauses (A)
and (B) above. Without limiting the generality of the
foregoing, costs incurred after the date hereof with
respect to clauses (A) or (B) above shall include
costs incurred for all facilities relating to such
assets or property, or to projects, ventures or other
arrangements of which such assets or property form a
part or which relate to such assets or property,
which facilities shall include, without limitation,
Facilities, whether or not in whole or in part
located (or from time to time located) at or on such
assets or property;
(x) Liens granted in the ordinary course of business in
connection with Financial Instrument Obligations;
(xi) Purchase Money Mortgages;
(xii) Liens in favor of the Company or any of its
Subsidiaries to secure indebtedness owed to the
Company or any of its Subsidiaries; and
(xiii) any extension, renewal, alteration, refinancing,
replacement, exchange or refunding (or successive
extensions, renewals, alterations, refinancings,
replacements, exchanges or refundings) of all or part
of any Lien referred to in the foregoing clauses;
PROVIDED, HOWEVER, that (A) such new Lien shall be
limited to all or part of the property or assets
which was secured
12
by the prior Lien plus improvements on such property
or assets and (B) the indebtedness, if any, secured
by the new Lien is not increased from the amount of
the indebtedness secured by the prior Lien then
existing at the time of such extension, renewal,
alteration, refinancing, replacement, exchange or
refunding, plus an amount necessary to pay fees and
expenses, including premiums, related to such
extensions, renewals, alterations, refinancings,
replacements, exchanges or refundings.
"PERSON" means any individual, corporation, partnership,
limited liability company, unlimited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"PURCHASE MONEY MORTGAGE" of any Person means any Lien created
upon any property or assets of such Person to secure or securing the whole or
any part of the purchase price of such property or assets or the whole or any
part of the cost of constructing or installing fixed improvements thereon or to
secure or securing the repayment of money borrowed to pay the whole or any part
of such purchase price or cost of any vendor's privilege or Lien on such
property or assets securing all or any part of such purchase price or cost
including title retention agreements and leases in the nature of title retention
agreements; provided that (i) the principal amount of money borrowed which is
secured by such Lien does not exceed 100% of such purchase price or cost and any
fees incurred in connection therewith, and (ii) such Lien does not extend to or
cover any other property other than such item of property and any improvements
on such item.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, in whole or in part, means the price at which it is to be redeemed
pursuant to this Indenture.
"REGISTERED SECURITY" means any Security registered in the
Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
13
"REPAYMENT DATE" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid pursuant to this Indenture.
"REQUIRED CURRENCY" has the meaning specified in Section 114.
"RESET NOTICE" has the meaning specified in Section 307.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any vice-president, any assistant vice-president, any assistant secretary,
any assistant treasurer, any trust officer or assistant trust officer or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers, and assigned to or employed
by the Trustee's corporate trust department, and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"RESTRICTED PROPERTY" means any oil, gas or mineral property
of a primary nature located in the United States or Canada, and any facilities
located in the United States or Canada, directly related to the mining,
processing or manufacture of hydrocarbons or minerals, or any of the
constituents thereof, or the derivatives therefrom and includes Voting Shares or
other interests of a corporation or other Person which owns such property or
facilities, but does not include (i) any property or facilities used in
connection with or necessarily incidental to the purchase, sale, storage,
transportation or distribution of Restricted Property, (ii) any property which,
in the opinion of the Board of Directors, is not materially important to the
total business conducted by the Company and its Subsidiaries as an entirety, or
(iii) any portion of a particular property which, in the opinion of the Board of
Directors, is not materially important to the use or operation of such property.
"RESTRICTED SECURITIES" means shares of stock or indebtedness
of any Restricted Subsidiary.
"RESTRICTED SUBSIDIARY" means, on any date, any Subsidiary of
the Company which owns at the time Restricted Property; PROVIDED, HOWEVER, such
term shall not include a Subsidiary of the Company if the amount of the
Company's share of Shareholders' Equity of such Subsidiary constitutes, at the
time of determination, less than 2% of the Consolidated Net Tangible Assets of
the Company.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture; PROVIDED, HOWEVER, that if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"SECURITY REGISTER" AND "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
14
"SHAREHOLDERS' EQUITY" means the aggregate amount of
shareholders' equity (including but not limited to share capital, contributed
surplus and retained earnings) of a Person as shown on the most recent annual
audited or quarterly unaudited consolidated balance sheet of such Person and
computed in accordance with GAAP.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in
Section 307.
"SUBSIDIARY" of any Person means, on any date, any corporation
or other Person of which Voting Shares or other interests carrying more than 50%
of the voting rights attached to all outstanding Voting Shares or other
interests are owned, directly or indirectly, by or for such Person or one or
more Subsidiaries thereof.
"SUBSTANTIAL COMPLETION" means, with respect to an
improvement, the point at which the improvement is ready for use or is being
used for the purpose for which it was intended.
"TRUST INDENTURE ACT" OR "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UCC" means the New York uniform commercial code in effect
from time to time.
"UNITED STATES" means the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"UNITED STATES PERSON" means an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary which is not or
which has ceased to be a Restricted Subsidiary.
15
"VALUATION DATE" has the meaning specified in Section 312(c).
"VICE-PRESIDENT", when used with respect to the Company or the
Trustee, means any vice-president, whether or not designated by a number or a
word or words added before or after the title "vice-president".
"VOTING SHARES" means shares of any class of any corporation
carrying voting rights under all circumstances, PROVIDED that, for the purposes
of this definition, shares which only carry the right to vote conditionally on
the happening of any event shall not be considered Voting Shares, nor shall any
shares be deemed to cease to be Voting Shares solely by reason of a right to
vote accruing to shares of another class or classes by reason of the happening
of such an event, or solely because the right to vote may not be exercisable
under the charter of the corporation.
"YIELD TO MATURITY" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any written application or written request by the Company
to the Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture (including any
covenant compliance with which constitutes a condition precedent) relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
covenant or condition provided for in this Indenture (other than pursuant to
Section 1004) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such covenant or condition has been complied with.
16
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Any certificate or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of, or representations by, an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which such certificate or opinion may be based are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders of the Outstanding Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If Securities
of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of such
series may, alternatively, be embodied in and evidenced by the record
of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities of such series duly called and held in accordance
with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where
it is hereby expressly required, to the Company. 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
17
such instrument or instruments or so voting at any such meeting. Proof
of execution of any such instrument or of a writing appointing any such
agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of authority. The fact
and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall
be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same, may be
proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall be deemed by
the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or 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 Company may assume that
such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is
produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4)
such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of
holding the same, may also be proved in any other manner that the
Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option,
by or pursuant to a Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier
than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the
Holders of
18
record at the close of business on such record date shall be deemed to
be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Securities have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. NOTICES, ETC. TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other documents provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Department, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders 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
19
Indenture, then any manner of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be sufficient giving of such notice for every purpose
hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
in an Authorized Newspaper in New York, New York and in such other city or
cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
In case, by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause,
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to Holders of Bearer Securities as provided above, nor any
defect in any notice so published, shall affect the sufficiency of such notice
with respect to other Holders of Bearer Securities or the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
and the Trustee shall bind their successors and assigns, whether so expressed or
not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in any Security or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
20
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities or coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Authenticating Agent, any Paying Agent, any Securities Registrar and their
successors hereunder and the Holders of Securities or coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW.
This Indenture and the Securities and coupons shall be
governed by and construed in accordance with the law of the State of New York
without regard to principles of conflicts of law. This Indenture is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
sinking fund payment date or Stated Maturity or Maturity of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of any Security or coupon other than a provision
in the Securities of any series which specifically states that such provision
shall apply in lieu of this Section), payment of principal (or premium, if any)
or interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or Redemption
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
PROVIDED that no additional interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
SECTION 113. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION;
WAIVER OF IMMUNITIES.
By the execution and delivery of this Indenture, the Company
(i) acknowledges that it has irrevocably designated and appointed CT Corporation
System, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ("CT CORPORATION")
as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Securities or this Indenture that
may be instituted in any federal or New York state court located in New York,
New York or brought under federal or state securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), (ii) submits to the non-exclusive jurisdiction of any such court in
any such suit or proceeding, and (iii) agrees that service of process upon CT
Corporation and written notice of said service to the Company (mailed or
delivered to the Company, Attention: General Counsel, at its principal office
specified in the first paragraph of this Indenture and in the manner specified
in Section 105 hereof), shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company further
agrees to take any and all action, including the execution and filing of any and
all such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation in full force and effect so long
as any of the Securities shall be outstanding.
21
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Indenture or the Securities in any
federal or state court in the State of New York, Borough of Manhattan. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 114. CONVERSION OF CURRENCY.
(a) The Company covenants and agrees that the following
provisions shall apply to conversion of currency in the case of the
Securities and this Indenture:
(1) If for the purposes of obtaining judgment in, or
enforcing the judgment of, any court in any country, it
becomes necessary to convert into any other currency (the
"JUDGMENT CURRENCY") an amount due or contingently due under
the Securities of any series and this Indenture (the "REQUIRED
Currency"), then the conversion shall be made at the rate of
exchange prevailing on the Business Day before the day on
which a final judgment which is not appealable or is not
appealed is given or the order of enforcement is made, as the
case may be (unless a court shall otherwise determine).
(2) If there is a change in the rate of exchange
prevailing between the Business Day before the day on which
the judgment referred to in (1) above is given or an order of
enforcement is made, as the case may be (or such other date as
a court shall determine), and the date of receipt of the
amount due, the Company shall pay such additional (or, as the
case may be, such lesser) amount, if any, as may be necessary
so that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of
receipt will produce the amount in the Required Currency
originally due.
(b) In the event of the winding-up of the Company at any
time while any amount or damages owing under the Securities and this
Indenture, or any judgment or order rendered in respect thereof, shall
remain outstanding, the Company shall indemnify and hold the Holders of
Securities and the Trustee harmless against any deficiency arising or
resulting from any variation in rates of exchange between (1) the date
as of which the equivalent of the amount in the Required Currency
(other than under this Subsection (b)) is calculated for the purposes
of such winding-up and (2) the final date for the filing of proofs of
claim in such winding-up. For the purpose of this Subsection (b) the
final date for the filing of proofs of claim in the winding-up of the
Company shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
22
(c) The obligations contained in Subsections (a)(2) and (b)
of this Section shall constitute separate and independent obligations
of the Company from its other obligations under the Securities and this
Indenture, shall give rise to separate and independent causes of action
against the Company, shall apply irrespective of any waiver or
extension granted by any Holder or Trustee from time to time and shall
continue in full force and effect notwithstanding any judgment or order
or the filing of any proof of claim in the winding-up of the Company
for a liquidated sum in respect of amounts due hereunder (other than
under Subsection (b) above) or under any such judgment or order. Any
such deficiency as aforesaid shall be deemed to constitute a loss
suffered by the Holders or the Trustee, as the case may be, and no
proof or evidence of any actual loss shall be required by the Company
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 the Bank of
Canada noon rate for purchases on the relevant date of the Required
Currency with the Judgment Currency, as reported on the "Exchange
Rates--Daily noon rates" page of the website of Bank of Canada (or by
such other means of reporting the Bank of Canada noon rate as may be
agreed upon by each of the parties to this Indenture) and includes any
premiums and costs of exchange payable.
SECTION 115. CURRENCY EQUIVALENT.
Except as otherwise provided in this Indenture, for purposes
of the construction of the terms of this Indenture or of the Securities, in the
event that any amount is stated herein in the Currency of one nation (the "FIRST
CURRENCY"), as of any date such amount shall also be deemed to represent the
amount in the Currency of any other relevant nation (the "OTHER CURRENCY") which
is required to purchase such amount in the First Currency at the Bank of Canada
noon rate as reported on the "Exchange Rates--Daily noon rates" page of the
website of Bank of Canada (or by such other means of reporting the Bank of
Canada noon rate as may be agreed upon by each of the parties to this Indenture)
on the date of determination.
SECTION 116. INCORPORATORS, SHAREHOLDERS, OFFICERS AND
DIRECTORS OF THE COMPANY EXEMPT FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or
agreement contained in this Indenture, or in any Security, or because of any
indebtedness evidenced thereby, shall be had against any incorporator, as such,
or against any past, present or future shareholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders as part of the consideration for the
issue of the Securities.
23
SECTION 117. CONFLICT WITH THE TRUST INDENTURE ACT.
If and to the extent that any provision hereof limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 318,
inclusive, of the Trust Indenture Act, through operation of Section 318(c)
thereof, such imposed duties shall control.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons shall be in
substantially the forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series are established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities or coupons. Any portion of the
text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
Unless otherwise specified as contemplated by Section 301,
Securities in bearer form shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities
shall be in substantially the form set forth in this Article.
The definitive Securities 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 of the Company executing such
Securities, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
Subject to Section 612, the Trustee's certificate of
authentication shall be in substantially the following form:
24
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated and
referred to in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM.
If Securities of or within a series are issuable in global
form, as specified and contemplated by Section 301, then, notwithstanding clause
(8) of Section 301 and Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon written instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon written
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement or delivery or redelivery of a Security in global
form shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
25
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set forth
in, or determined in the manner provided in, an Officer's Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (17) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series and set forth in such Securities of the series
when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the Securities of the
series may be issued and on which the principal of the Securities of
the series is payable;
(4) the rate or rates (whether fixed or variable) at which
the Securities of the series shall bear interest, if any, or the method
by which such rate or rates shall be determined, the date or dates from
which such interest shall accrue, or the method by which such date or
dates shall be determined, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if any, for the
interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date or dates shall be determined,
whether and under what circumstances Additional Amounts on such
Securities or any of them shall be payable, the notice, if any, to
Holders regarding the determination of interest on a floating rate
Security and the manner of giving such notice, and the basis upon which
interest shall be calculated if other than on the basis of a 360-day
year of twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, New York, New York where the principal of
(and premium, if any) and interest, if any, on Securities of the series
shall be payable, where any Registered Securities of the series may be
surrendered for registration of transfer, where Securities of the
series may be surrendered for exchange, where Securities of the series
that are convertible or exchangeable may be surrendered for conversion
or exchange, as applicable and, if different than the location
specified in Section 105, the place or places
26
where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency in which, and other terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which, the price or prices at which, the
Currency in which, and other terms and conditions upon which Securities
of the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Currency in which payment of
the principal of (or premium, if any) or interest, if any, on the
Securities of the series shall be payable or in which the Securities of
the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any
of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company or a Holder thereof, in a Currency other
than that in which such Securities are denominated or stated to be
payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so payable,
in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
27
(14) the designation of the initial Exchange Rate Agent, if
any;
(15) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen
that shall be applicable to the Securities of the series;
(16) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(17) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to Section 1009) of the Company with
respect to Securities of the series, whether or not such Events of
Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(18) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any Securities
of the series are to be issuable in permanent global form with or
without coupons and, if so, whether beneficial owners of interests in
any such permanent global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, whether
Registered Securities of the series may be exchanged for Bearer
Securities of the series (if permitted by applicable laws and
regulations), whether Bearer Securities of the series may be exchanged
for Registered Securities of such series, and the circumstances under
which and the place or places where any such exchanges may be made and
if Securities of the series are to be issuable in global form, the
identity of any initial Depositary therefor;
(19) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities
of the series shall be dated if other than the date of original
issuance of the first Security of the series to be issued;
(20) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 304;
(21) if Securities of the series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and/or terms of such certificates, documents or conditions;
28
(22) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(23) whether, under what circumstances and the Currency in
which the Company will pay Additional Amounts as contemplated by
Section 1005 on the Securities of the series to any Holder who is not a
United States person (including any modification to the definition of
such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(24) if the Securities of the series are to be convertible
into or exchangeable for any debt securities of any Person (including
the Company), the terms and conditions upon which such Securities will
be so convertible or exchangeable;
(25) if payment of the Securities will be guaranteed by any
other Person;
(26) 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 Company; and
(27) any other terms, conditions, rights and preferences (or
limitations on such rights and preferences) relating to the series
(which terms shall not be inconsistent with the requirements of the
Trust Indenture Act or the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to a Board Resolution (subject to Section
303) and set forth in such Officer's Certificate or in any such indenture
supplemental hereto. The Company may, from time to time, without notice or
consent of the Holders, create and issue additional Securities of a series so
that such additional Securities may be consolidated and form a single series
with the Securities of the same series initially issued by the Company and shall
have the same terms as to status, redemption and otherwise as the Securities of
the same series originally issued.
If any of the terms of the series are established by action
taken pursuant to one or more Board Resolutions, such Board Resolutions shall be
delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. With respect
to Securities of any series denominated in Dollars, in the absence of any such
provisions, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of such series, other than the Bearer Securities issued in
global form (which may be of any denomination), shall be issuable in a
denomination of $5,000.
29
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President, its Chief
Executive Officer, its Chief Financial Officer or a Vice-President, together
with any one of the Corporate Secretary, or Assistant Corporate Secretary, the
Treasurer or an Assistant Treasurer. The signature of any of these officers on
the Securities or coupons may be the manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
together with any coupon appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER,
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture, dated no earlier than 15 days prior to the earlier of the
date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled. If not all
the Securities of any series are to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so permit,
such Company Order may set forth procedures acceptable to the Trustee for the
issuance of such Securities and determining terms of particular Securities of
such series such as interest rate, stated maturity, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon, one or more Opinions
of Counsel stating:
30
(a) if the form of such Securities has been established by
or pursuant to a Board Resolution or in one or more indentures
supplemental hereto as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to one or more Board Resolutions or established in one or
more indentures supplemental hereto as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute the legal, valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights and to general equitable principles.
Notwithstanding the provisions of Section 301 and of the
preceding two paragraphs, if not all the Securities of any series are to be
issued at one time, it shall not be necessary to deliver the Officer's
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to the preceding two paragraphs
prior to or at the time of issuance of each Security, but such documents shall
be delivered prior to or at the time of issuance of the first Security of such
series.
The Trustee shall not be required to authenticate and deliver
any such Securities if the issue of such Securities pursuant to this Indenture
will affect the Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not reasonably acceptable
to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form provided
for herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 310 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never entitle a Holder to the benefits of this
Indenture.
31
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as conclusively the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; PROVIDED,
HOWEVER, that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED FURTHER, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein, be delivered to the London, England office of a depositary or common
depositary (the "COMMON DEPOSITARY") or the Depositary, as applicable, for the
benefit of Euroclear and Clearstream, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "EXCHANGE DATE"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent
32
global registered form, or any combination thereof, as specified as contemplated
by Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; PROVIDED, HOWEVER, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit A-2
to this Indenture (or in such other form as may be established pursuant to
Section 301); and PROVIDED FURTHER, that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like in the event that
such Person does not take delivery of such definitive Securities in person at
the offices of Euroclear or Clearstream. Definitive Securities in bearer form to
be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear and
Clearstream to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other form as may be
established pursuant to Section 301), for credit without further interest
thereon on or after such Interest Payment Date to the respective accounts of the
Persons who are the beneficial owners of such temporary global Security on such
Interest Payment Date and who have each delivered to Euroclear or Clearstream,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section and of the third paragraph of Section 303 of this Indenture and the
interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for
definitive Securities of the
33
same series and of like principal amount and tenor and evidencing the same
indebtedness on the Exchange Date or the date of certification if such date
occurs after the Exchange Date, without further act or deed by such beneficial
owners. Except as otherwise provided in this paragraph, no payments of principal
(or premium, if any) or interest, if any, owing with respect to a beneficial
interest in a temporary global Security will be made unless and until such
interest in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by Euroclear and
Clearstream and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register for each series of Securities (the registers
maintained in the Corporate Trust Office of the Trustee and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "SECURITY
REGISTRAR") for the purpose of registering Registered Securities and transfers
of Registered Securities as herein provided. The Company shall have the right to
remove and replace from time to time the Security Registrar for any series of
Securities; PROVIDED, THAT, no such removal or replacement shall be effective
until a successor Security Registrar with respect to such series of Registered
Securities shall have been appointed by the Company and shall have accepted such
appointment by the Company. In the event that the Trustee shall not be or shall
cease to be the Security Registrar with respect to a series of Securities, it
shall have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for such series of
Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
principal amount and tenor and evidencing the same indebtedness.
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 principal amount and tenor and
evidencing the same indebtedness, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
34
If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officer's Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like principal amount and tenor
and evidencing the same indebtedness, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
in an amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; PROVIDED, HOWEVER,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the same
series and like tenor after the close of business at such office or agency on
(i) any Regular Record Date and before the opening of business at such office or
agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like principal amount and tenor and
evidencing the same indebtedness of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable notice
provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which
such interest may be so exchanged, the Company shall deliver to the Trustee
definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered by the
Common Depositary or such other Depositary as shall be specified in the Company
Order with respect thereto to the Trustee, as the Company's agent for
35
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; PROVIDED, HOWEVER, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities to be redeemed and ending on the relevant
Redemption Date if the Security for which exchange is requested may be among
those selected for redemption; and PROVIDED FURTHER, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
If at any time the Depositary for Securities of a series
notifies the Company that it is unwilling, unable or no longer qualifies to
continue as Depositary for Securities of such series or if at any time the
Depositary for Securities for such series shall no longer be registered or in
good standing under the Exchange Act, or other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the Securities
for such series. If a successor to the Depositary for Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, and the Trustee, as
Security Registrar, has received a written request from the Depositary or a
participant in the Depositary in accordance with the Depositary's customary
procedures to issue Securities in definitive form to such participant or other
beneficial owner specified by such participant to the Trustee in writing, the
Depositary shall no longer continue as Depositary with respect to the Securities
for such series and the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver individual Securities of such series
in certificated, fully registered form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the global Security
or Securities representing such series in exchange for such global Security or
Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more
global Securities shall no longer be represented by such global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver Securities of such
series in definitive registered form, in authorized denominations, and in an
aggregate principal amount equal to the
36
principal amount of the global Security or Securities representing such series
in exchange for such global Security or Securities.
Upon the exchange of a global Security for Securities in
definitive registered form, such global Security shall be cancelled by the
Trustee. Securities issued in exchange for a global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. The Trustee shall deliver such Securities to the persons in whose names
such Securities are so registered.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the selection for redemption
of Securities of that series under Section 1103 or 1203 and ending at the close
of business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor; PROVIDED that such Registered Security shall be
immediately surrendered for redemption, or (iv) to issue, register the transfer
of or exchange any Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Security not to be so
repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like principal amount and tenor and
evidencing the same indebtedness and bearing a number not contemporaneously
37
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security, or, in case any such mutilated Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, pay such Security or coupon.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a protected purchaser (as defined in Article 8 of the UCC), the
Company shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security for which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like principal amount and tenor and evidencing the same
indebtedness and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; PROVIDED, HOWEVER, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may 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 Company, whether or not the mutilated, destroyed,
lost or stolen Security and its coupons, if any, or the mutilated, destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and the
Holders of such Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities of that series and
their coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
38
SECTION 307. PAYMENT OF PRINCIPAL AND INTEREST; INTEREST
RIGHTS PRESERVED; OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest, if any, on any
Registered Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of the principal of (and premium, if any, on) and interest,
if any, on any Registered Security may at the Company's option be paid
by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 309,
to the address of such Person as it appears on the Security Register or
(ii) wire transfer to an account of the person entitled to receive such
payment located in the United States maintained by the payee of a
Holder of $5,000,000 or more in aggregate principal amount of the
Securities of such series (with wire transfer instructions provided to
the Trustee not less than 15 days prior to payment of interest by wire
transfer); PROVIDED FURTHER, that principal paid in relation to any
Security redeemed at the option of the Company pursuant to Article
Eleven, or paid at Maturity, shall be paid to the Holder of such
Security only upon presentation and surrender of such Security to such
office or agency referred to in this Section 307(a).
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date, and such defaulted interest and, if applicable, interest on
such defaulted interest (to the extent lawful) at the rate specified in the
Securities of such series (such defaulted interest and, if applicable, interest
thereon herein collectively called "DEFAULTED INTEREST") may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an
39
amount of money in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior
to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided in Section 106,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to
the Persons in whose name the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified
pursuant to such Section 301). The interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable)
on any Security of such series may be reset by the Company on the date
or dates specified on the face of such Security (each an "OPTIONAL
RESET DATE"). The Company may exercise such option with respect to such
Security by notifying the Trustee of such exercise at least 50 but not
more than 60 days prior to an Optional Reset Date for such Note. Not
later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of
any such Security a notice (the "RESET NOTICE") indicating whether the
Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if
so (i) such new interest rate (or such new spread or spread multiplier,
if applicable) and (ii) the provisions, if any, for redemption during
the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such next Optional Reset Date, to the Stated
Maturity Date of such Security (each such period a "SUBSEQUENT INTEREST
PERIOD"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
40
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. OPTIONAL EXTENSION OF STATED MATURITY.
The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "EXTENSION PERIOD") up to but not beyond the date (the "FINAL
MATURITY") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 50 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "ORIGINAL STATED MATURITY").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "EXTENSION NOTICE")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
41
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Maturity thereof, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of Holders, except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 305 and
307) interest, if any, on such Security and for all other purposes whatsoever
(except for determining whether the payment of Additional Amounts is required),
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupons be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
The Depositary for Securities may be treated by the Company,
the Trustee, and any agent of the Company or the Trustee as the owner of such
global Security for all purposes whatsoever (except for determining whether the
payment of Additional Amounts is required). None of the Company, the Trustee,
any Paying Agent or the Security Registrar will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding anything to the contrary in this Indenture,
the Depositary or its nominee, as a Holder of a global Security, may grant
proxies and otherwise authorize any Person (including owners of beneficial
interests in the Securities) to take any action that the Depositary or its
nominee, as a Holder of a global Security, is entitled to take under this
Indenture or the
42
Securities, provided further that, with respect to any global Security, nothing
herein shall prevent the Company, the Trustee, or any agent of the Company or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any Depositary, as a Holder, with respect to such
global Security or impair, as between such Depositary and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such Depositary (or its nominee) as
Holder of such global Security.
SECTION 310. CANCELLATION.
All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any current or future sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities and coupons so delivered to the Trustee shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for 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 Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 311. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301
with respect to any Securities, interest, if any, on the Securities shall be
computed on the basis of a 360 day year of twelve 30 day months. Solely for the
purposes of the INTEREST ACT (Canada), the yearly rate of interest to which
interest calculated under a Security for a period of less than one year on the
basis of a year of 360 days consisting of twelve 30 day periods (the
"CALCULATION PERIOD") is equivalent is such rate of interest multiplied by a
fraction of which (i) the numerator is the product of (A) the actual number of
days in the year commencing on the first day of such period, multiplied by (B)
the sum of (y) the product of 30 multiplied by the number of complete months
elapsed in such period and (z) the actual number of days elapsed in any
incomplete month in such period; and (ii) the denominator is the product of (A)
360 multiplied by (B) the actual number of days in such period.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES.
(a) With respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in paragraph
(b) below, and with respect to Bearer Securities of any series, except
as provided in paragraph (d) below, payment of the principal of (and
premium, if any) and interest, if any, on any Registered or Bearer
Security of such series
43
will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this
Section 312 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect
to Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive payments of
principal of (or premium, if any) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated
for such election by delivering to the Trustee a written election with
signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election
will remain in effect for such Holder or any transferee of such Holder
until changed by such Holder or such transferee by written notice to
the Trustee (but any such change must be made not later than the close
of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date
and no such change of election may be made with respect to payments to
be made on any Registered Security of such series with respect to which
an Event of Default has occurred or with respect to which the Company
has deposited funds pursuant to Article Four or Fourteen or with
respect to which a notice of redemption has been given by the Company
or a notice of option to elect repayment has been sent by such Holder
or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee not later
than the close of business on the applicable Election Date will be paid
the amount due on the applicable payment date in the relevant Currency
as provided in Section 312(a). The Trustee shall notify the Exchange
Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders
have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if
the election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to
Section 301, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the
Exchange Rate Agent will deliver to the Company a written notice
specifying, in the Currency in which Registered Securities of such
series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered
Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to
which the Holders of Registered Securities of such series shall have
elected to be paid in another Currency as provided in paragraph (b)
above. If the election referred to in paragraph (b) above has been
provided for pursuant to Section 301 and if at least one Holder has
made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered
Securities an Exchange Rate Officer's Certificate in respect of the
Dollar or Foreign Currency payments to be made on such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar or
Foreign Currency amount receivable by Holders of Registered Securities
who have elected payment in a Currency as provided in paragraph (b)
above shall be determined by the Company on the basis of the applicable
Market Exchange Rate in effect on the third Business Day (the
"VALUATION DATE")
44
immediately preceding each payment date, and such determination shall
be conclusive and binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable
other than pursuant to an election provided for pursuant to paragraph
(b) above, then with respect to each date for the payment of principal
of (and premium, if any) and interest, if any, on the applicable
Securities denominated or payable in such Foreign Currency occurring
after the last date on which such Foreign Currency was used (the
"CONVERSION DATE"), the Dollar shall be the Currency of payment for use
on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee
and by the Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be the Dollar
Equivalent of the Foreign Currency as determined by the Exchange Rate
Agent in the manner provided in paragraph (f) below.
(e) Unless otherwise specified pursuant to Section 301, if
the Holder of a Registered Security denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph
(b) above, and a Conversion Event occurs with respect to such elected
Currency, such Holder shall receive payment in the Currency in which
payment would have been made in the absence of such election; and if a
Conversion Event occurs with respect to the Currency in which payment
would have been made in the absence of such election, such Holder shall
receive payment in Dollars as provided in paragraph (d) above.
(f) The "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency
into Dollars at the Market Exchange Rate on the Conversion Date.
(g) For purposes of this Section 312, "ELECTION DATE" shall
mean the date for any series of Registered Securities as specified
pursuant to clause (13) of Section 301 by which the written election
referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency and the Market Exchange
Rate as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and the Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date.
The Trustee shall be fully justified and protected in relying
and acting upon information received by it from the Company and the Exchange
Rate Agent and shall not
45
otherwise have any duty or obligation to determine the accuracy or validity of
such information independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR
EXCHANGE RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if
and so long as the Securities of any series (i) are denominated in a
Foreign Currency or (ii) may be payable in a Foreign Currency, or so
long as it is required under any other provision of this Indenture,
then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The
Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified
pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the
issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to
Section 312.
(b) The Company shall have the right to remove and replace
from time to time the Exchange Rate Agent for any series of Securities.
No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustee.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office
of the Exchange Rate Agent for any cause with respect to the Securities
of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Exchange Rate Agent or
Exchange Rate Agents with respect to the Securities of that or those
series (it being understood that any such successor Exchange Rate Agent
may be appointed with respect to the Securities of one or more or all
of such series and that, unless otherwise specified pursuant to Section
301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally
issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon a Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities of such series expressly provided for herein or
pursuant hereto and any right to receive Additional Amounts as contemplated by
Section 1005) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when
(1) either
46
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in ▇▇▇▇▇▇▇ ▇▇▇,
(▇▇) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter
repaid to the Company, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) (1) all Securities of such series and, in the case
of (i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company in respect of such series;
and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 612 and, if
money shall have been deposited with the
47
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities,
the coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company 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 FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to a supplemental indenture, Board Resolution or
Officer's Certificate establishing the terms of such series pursuant to Section
301 of this Indenture:
(1) default in the payment of any interest on any Security
of that series, or any related coupon, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and
payable; or
(3) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture in respect of the
Securities of that series (other than a covenant or warranty a default
in the performance of which, or the breach of which, is specifically
dealt with elsewhere in this Indenture), and continuance of such
default or breach for a period of 60 days after the receipt by the
Company of written notice specifying such default or breach, and
requiring it to be remedied and stating that such notice is a "NOTICE
OF DEFAULT" hereunder (i) to the Company (attention of the General
Counsel to the Company via facsimile, with a hard copy then sent, by
registered or certified mail) by the Trustee or (ii) to the Company (in
the same manner) and the Trustee by the Holders of at least 25% in
principal amount of all Outstanding Securities of any series affected
thereby; or
(4) if an event of default (as defined in any indenture or
instrument under which the Company or any of its Restricted
Subsidiaries has at the time of this Indenture
48
or shall thereafter have outstanding any indebtedness for borrowed
money) shall happen and be continuing, or the Company or any of its
Restricted Subsidiaries shall have failed to pay principal amounts with
respect to such indebtedness at maturity and such event of default or
failure to pay shall result in such indebtedness being declared due and
payable or otherwise being accelerated, in either event so that an
amount in excess of the greater of $75,000,000 and 2% of the
Shareholders' Equity of the Company shall be or become due and payable
upon such declaration or otherwise accelerated prior to the date on
which the same would otherwise have become due and payable (the
"ACCELERATED INDEBTEDNESS"), and such acceleration shall not be
rescinded or annulled, or such event of default or failure to pay under
such indenture or instrument shall not be remedied or cured, whether by
payment or otherwise, or waived by the holders of such Accelerated
Indebtedness, then (a) if the Accelerated Indebtedness shall be as a
result of an event of default which is not related to the failure to
pay principal or interest on the terms, at the times and on the
conditions set out in any such indenture or instrument, it shall not be
considered an Event of Default for purposes of this Indenture until 30
days after such indebtedness has been accelerated, or (b) if the
Accelerated Indebtedness shall occur as a result of such failure to pay
principal or interest or as a result of an event of default which is
related to the failure to pay principal or interest on the terms, at
the times, and on the conditions set out in any such indenture or
instrument, then (i) if such Accelerated Indebtedness is, by its terms,
Non-Recourse Debt to the Company or its Restricted Subsidiaries, it
shall not be considered an Event of Default for purposes of this
Indenture; or (ii) if such Accelerated Indebtedness is recourse to the
Company or its Restricted Subsidiaries, any requirement in connection
with such failure to pay or event of default for the giving of notice
or the lapse of time or the happening of any further condition, event
or act under such other indenture or instrument in connection with such
failure to pay principal or an event of default shall be applicable
together with an additional seven days before being considered an Event
of Default for purposes of this Indenture; or
(5) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect
of the Company under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other applicable
insolvency law, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 90 consecutive days; or
(6) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under the BANKRUPTCY AND INSOLVENCY ACT (Canada), the
COMPANIES' CREDITORS ARRANGEMENT ACT (Canada) or any other applicable
insolvency law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due; or
49
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default described in Section 501 with respect
to Securities of any series at the time Outstanding occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities of such affected series
may, subject to any subordination provisions thereof, declare the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) of all of the Securities of that series,
and all accrued and unpaid interest thereon to the date of such acceleration, to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) has
been made, but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue interest, if any, on all Outstanding
Securities of that series (or of all series, as the case may
be) and any related coupons,
(B) all unpaid principal of (and premium, if any) any
Outstanding Securities of that series (or of all series, as
the case may be) which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid
principal at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest, if any, at the rate or
rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of amounts of principal of (or premium, if any, on) or
interest on Securities of that series (or of all series, as the case
may be) which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
50
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Securities because of an Event of
Default specified in Section 501(4) shall have occurred and be continuing, such
declaration of acceleration shall be automatically annulled if the indebtedness
that is the subject of such Event of Default has been discharged or the holders
thereof have rescinded their declaration of acceleration in respect of such
indebtedness, and written notice of such discharge or rescission, as the case
may be, shall have been given to the Trustee by the Company and countersigned by
the holders of such indebtedness or a trustee, fiduciary or agent for such
holders, within 30 days after such declaration of acceleration in respect of the
Securities, and no other Event of Default has occurred during such 30-day period
which has not been cured or waived during such period.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to the Trustee for the
benefit of the Holders of such Securities and coupons, the whole amount then due
and payable on such Securities and coupons for principal (and premium, if any)
and interest, if any, and interest on any overdue principal (and premium, if
any) and on any overdue interest, at the rate or rates prescribed therefor in
such Securities, and, in addition thereto, such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series (or of all series, as the case may be) occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series (or of all series, as the
case may be) by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
51
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or the property of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal, premium, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any), or such portion of the principal
amount of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series, and
interest, if any, owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES.
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
52
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, if any, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest, if any, on the
Securities and coupons in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: The balance, if any, to the Company or to such Person
or Persons as the Company instructs in writing.
SECTION 507. LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, the Securities of any series, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series in the case of any
Event of Default described in Section 501, shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities of
that series in the case of any Event of Default described in Section
501;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in Section 501, or to obtain or to seek to obtain priority or
preference
53
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all Holders of Securities of the same series, in the case of any Event of
Default described in Section 501.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL (PREMIUM, IF ANY) AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment, as provided herein (including, if applicable,
Article Fourteen) and in such Security, of the principal of (and premium, if
any) and (subject to Section 307) interest, if any, on, such Security or payment
of such coupon on the respective Stated Maturities expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities and coupons shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. CONTROL BY HOLDERS.
Subject to Article Six, with respect to the Securities of any
series, the Holders of not less than a majority in principal amount of the
Outstanding Securities of such series shall
54
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under Section 501, PROVIDED
that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS.
Subject to Section 502, the Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default described in Section 501, and its consequences, except a default
(1) in respect of the payment of the principal of (or
premium, if any) or interest, if any, on any Security or any related
coupon, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, any such default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder, by
acceptance of a Security, shall be deemed to have agreed that, in any suit for
the enforcement of any right or remedy under this Indenture, or any suit against
the Trustee for any action taken, suffered or omitted by it as
55
Trustee, any court may, in its discretion, require the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
PROVIDED, HOWEVER, that the provisions of this Section 515 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate Securities representing more than 10%
of the aggregate principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment of
any installment of interest on any Security on or after the Stated Maturity
thereof expressed in such Security or for the enforcement of the payment of the
principal of such Security at the Stated Maturity therefore.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any Default hereunder
with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series and any related coupons, and so advises the
Company in writing; and PROVIDED FURTHER, that in the case of any Default of the
character specified in Section 501(3) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof.
SECTION 602. CERTAIN DUTIES AND RESPONSIBILITIES OF
TRUSTEE.
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform with respect to the Securities of
any series, such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read into
this Indenture against the Trustee. If an Event of Default has occurred
and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care
and skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of such person's own affairs.
(b) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except
that:
(1) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
56
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture
and the Trust Indenture Act;
but in the case of any such certificates or opinions that by
any provision hereof or Section 314 of the TIA are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by them in good faith in accordance
with the direction of the Holders of not less than a majority in
principal amount of the Securities of any series at the time
Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee under this Indenture; and
(4) notwithstanding anything contained herein to the
contrary, subject to the provisions of TIA Sections 315(a) through
315(d), the Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Whether or not therein expressly so provided, except to
the extent expressly provided herein to the contrary, every provision
of this Indenture relating to the conduct or effecting the liability or
affording protection to the Trustee, shall be subject to the provisions
of this Section.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through
315(d):
(1) the Trustee may, in good faith, rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
57
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officer's
Certificate;
(4) before the Trustee acts or refrains from acting, the
Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture; and
(9) except as otherwise specifically provided herein, (i)
all references in this Indenture to the Trustee shall be deemed to
refer to the Trustee in its capacity as Trustee and in its capacities
as Security Registrar, Authenticating Agent and Paying Agent and (ii)
every provision of this Indenture relating to the conduct or affecting
the liability or offering protection, immunity or indemnity to the
Trustee shall be deemed to apply with the same force and effect to the
Trustee acting in its capacities as Paying Agent, Authenticating Agent
and Security Registrar.
58
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR
ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, and in any coupons shall be
taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are
true and accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and coupons and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent. A
Trustee that has resigned or was removed shall remain subject to TIA Section
311(a).
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee from time to time such
compensation as the Trustee and the Company shall from time to time
agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (including, without limitation,
the reasonable compensation and the expenses and disbursements of its
agents and counsel) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust
59
or trusts hereunder, the performance of its duties hereunder and/or the
exercise of its rights hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(5), the expenses
(including reasonable charges and expense of its counsel) of and the
compensation for such services are intended to constitute expenses of
administration under any applicable U.S. or Canadian federal, state or
provincial bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture, the payment of the Securities and the resignation or removal
of the Trustee.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus (together with that of its parent) of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee
required by Section 610 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
60
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of not less than a
majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall acquire any conflicting interest
as defined in TIA Section 310(b) and fail to comply with the
provisions of TIA Section 310(b)(i), or
(2) the Trustee shall fail to comply with the
provisions of the TIA Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(3) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(4) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of
such Trustee or of its property shall be appointed or any
public officer shall take charge or control of such Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to
all Securities or the Securities of such series, or (ii) subject to TIA Section
315(e), any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities of such series and the appointment of a successor Trustee or
Trustees. The following indentures shall be deemed to be specifically described
herein for the purposes of clause (i) of the second provision contained in TIA
Section 310(b): (a) Indenture, dated as of September 15, 2000, between Alberta
Energy Company Ltd. and The Bank of New York, as trustee, as amended by a
supplemental indenture, dated as of January 1, 2003, between the Company and The
Bank of New York, as trustee, (b) Indenture, dated as of October 26, 2001,
between Alberta Energy Company Ltd. and The Bank of New York, as trustee, as
amended by a supplemental indenture, dated as of January 1, 2003, between the
Company and The Bank of New York, as trustee, and (c) Indenture, dated as of
October 2, 2003, between the Company and The Bank of New York, as trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, with respect to the Securities of one or more
series, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or
those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series). If, within one
year after such resignation, removal or incapability, or the occurrence
of such vacancy, a successor Trustee with respect to the Securities of
any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee
61
with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall
have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series to the Holders of Securities of such series in
the manner provided for in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to
the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall
become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such
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
62
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates. Whenever there is a successor Trustee with
respect to one or more (but less than all) series of securities issued
pursuant to this Indenture, the terms "Indenture" and "Securities"
shall have the meanings specified in the provisos to the respective
definitions of those terms in Section 101 which contemplate such
situation.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, powers
and trusts referred to in paragraph (i) or (ii) of this Section, as the
case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities. In
case any of the Securities shall not have been authenticated by such predecessor
Trustee, any successor Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor Trustee. In
all such cases such certificates shall have the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee;
PROVIDED, HOWEVER, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 612. AUTHORIZATION OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the
Trustee may authorize an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series and the Trustee shall give
written notice of such appointment to all Holders of Securities of the series
with respect to which such Authenticating Agent will serve, in the manner
provided for in Section 106. Securities so authenticated shall be entitled to
the benefits of this Indenture and
63
shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such authorization shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, and a copy of such
instrument shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may authorize a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such authorization to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
authorization hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be authorized
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
64
If an authorization with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
Dated:
----------------------
This is one of the Securities of the series designated and
referred to in, and issued under, the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
-----------------------------
as Authenticating Agent
By
-----------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee (1) not more than 15 days after each Regular Record Date a list, in such
form as the Trustee may reasonably require, of the names and addresses of
Holders of Registered Securities as of such Regular Record Date; PROVIDED,
HOWEVER, that the Company shall not be obligated to furnish or cause to be
furnished such list at any time that the list shall not differ in any respect
from the most recent list furnished to the Trustee by the Company and at such
times as the Trustee is acting as Security Registrar for the applicable series
of Securities and (2) at such other times as the Trustee may request in writing
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished.
SECTION 702. PRESERVATION OF LIST OF NAMES AND ADDRESSES
OF HOLDERS.
The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of Registered Securities contained in the most recent list furnished to
it as provided in Section 701 and as to the names and addresses of Holders of
Registered Securities received by the Trustee in its capacity as Security
Registrar for the applicable series of Securities (if acting in such capacity).
The Trustee may destroy any list furnished to it as provided
in Section 701 upon receipt of a new list so furnished.
65
Holders may communicate as provided in Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
SECTION 703. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that none of the
Company or the Trustee or any agent of either of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under TIA Section 312(b).
SECTION 704. REPORTS BY TRUSTEE.
(a) Within 60 days after [________] 15 of each year
commencing with the first [________] 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit to
the Holders of Registered Securities, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such [________] 15 if required by Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c)
of the Trust Indenture Act.
(c) A copy of such report shall, at the time of such
transmission to the Holders of Registered Securities, be filed by the
Trustee with the Company (Attention: General Counsel), with each
securities exchange upon which any of the Securities are listed (if so
listed) and also with the Commission. The Company agrees to notify the
Trustee in writing when the Securities become listed on any stock
exchange.
SECTION 705. REPORTS BY THE COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies, which may be
in electronic format, of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations;
(c) notwithstanding that the Company may not be required to
remain subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, or otherwise
66
report on an annual and quarterly basis on forms provided for such
annual and quarterly reporting pursuant to rules and regulations
promulgated by the Commission, the Company shall provide the Trustee:
(1) within 140 days after the end of each fiscal year, the
information required to be contained in annual reports on Form 20-F,
Form 40-F or Form 10-K as applicable (or any successor form); and
(2) within 65 days after the end of each of the first three
fiscal quarters of each fiscal year, the information required to be
contained in reports on Form 6-K (or any successor form) which,
regardless of applicable requirements, shall, at a minimum, contain
such information required to be provided in quarterly reports under the
laws of Canada or any province thereof to security holders of a company
with securities listed on the Toronto Stock Exchange, whether or not
the Company has any of its securities so listed.
Such reports, to the extent permitted by the rules and
regulations of the Commission, will be prepared in accordance with
Canadian disclosure requirements and GAAP; PROVIDED, HOWEVER, that the
Company shall not be obligated to file such reports with the Commission
if the Commission does not permit such filings;
(d) transmit to all Holders of Registered Securities, in the
manner and to the extent provided in Section 313(c) of the TIA, within
15 days after the filing thereof with the Trustee, such summaries of
any information, documents and reports required to be filed by the
Company pursuant to paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
The Company shall not consolidate or amalgamate with or merge
into or enter into any statutory arrangement with any other corporation, or
convey, transfer or lease all or substantially all of its properties and assets
to any Person, unless:
(1) the entity formed by or continuing from such
consolidation or amalgamation or into which the Company is merged or
with which the Company enters into such statutory arrangement or the
Person which acquires or leases, all or substantially all of the
Company's properties and assets (A) shall be a corporation, partnership
or trust organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia or the
laws of Canada or any province or territory thereof, or, if such
consolidation, amalgamation, merger, statutory arrangement or other
transaction would not impair the rights of Holders, in any other
country, provided that if such successor entity is organized under the
laws of a jurisdiction other than the United States, any state thereof
or the District of Columbia, or the laws of Canada or any province or
territory thereof, the successor entity assumes the Company's
obligations under the
67
Securities and this Indenture to pay Additional Amounts, including the
name of such successor jurisdiction in addition to Canada in each place
that Canada appears in Section 1005 and (B) shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, or shall assume by
operation of law, the Company's obligation for the due and punctual
payment of the principal of (and premium, if any) and interest, if any,
on all the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed
or observed;
(2) immediately before and after giving effect to such
transaction, no Default or Event of Default, shall have happened and be
continuing; and
(3) the Company or such Person shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel, each
stating that such amalgamation, statutory arrangement, consolidation,
merger, conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
This Section shall only apply to a merger, amalgamation,
statutory arrangement or consolidation in which the Company is not the surviving
corporation and to conveyances, leases and transfers by the Company as
transferor or lessor. For greater certainty, the Company shall be considered to
be the surviving corporation in the event of a statutory amalgamation by the
Company with any Subsidiary wholly-owned by it.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any amalgamation or consolidation by the Company with or
merger by the Company into any other corporation or any conveyance, transfer or
lease all or substantially all of the properties and assets of the Company to
any Person in accordance with Section 801, the successor Person formed by such
amalgamation or consolidation or into which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and in the event of any such conveyance or transfer, the Company (which
term shall for this purpose mean the Person named as the "Company" in the first
paragraph of this Indenture or any successor Person which shall theretofore
become such in the manner described in Section 801), except in the case of a
lease, shall be discharged of all obligations and covenants under this Indenture
and the Securities and the coupons and may be dissolved and liquidated.
SECTION 803. SECURITIES TO BE SECURED IN CERTAIN EVENTS.
If, upon any such amalgamation, consolidation or statutory
arrangement of the Company with or merger of the Company into any other
corporation, or upon any conveyance, lease or transfer of all or substantially
all of the property of the Company to any other Person, any Restricted Property
of the Company, or any Restricted Securities owned by the Company immediately
prior thereto, would thereupon become subject to any Lien, then unless such Lien
could be created pursuant to Section 1006 without equally and ratably securing
the Securities, the Company, prior to or simultaneously with such consolidation,
amalgamation, statutory arrangement, merger, conveyance, lease or transfer,
will, as to such Restricted Property or
68
Restricted Securities, secure the Securities Outstanding hereunder (together
with, if the Company shall so determine, any other indebtedness of the Company
now existing or hereafter created which is not subordinate to the Securities)
equally and ratably with (or prior to) the indebtedness which upon such
consolidation, amalgamation, merger, statutory arrangement, conveyance, lease or
transfer is to become secured as to such Restricted Property or Restricted
Securities by such Lien, or will cause such Securities to be so secured;
PROVIDED that, for the purpose of providing such equal and ratable security, the
principal amount of Original Issue Discount Securities and Indexed Securities
shall mean that amount which would at the time of making such effective
provision be due and payable pursuant to Section 502 and the terms of such
Original Issue Discount Securities and Indexed Securities upon a declaration of
acceleration of the Maturity thereof, and the extent of such equal and ratable
security shall be adjusted, to the extent permitted by law, as and when said
amount changes over time pursuant to the terms of such Original Issue Discount
Securities and Indexed Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS.
Without the consent of any Holders, the Company, 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
Company and the assumption by any such successor of the covenants of
the Company contained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities and any related
coupons (and if such covenants are to be for the benefit of less than
all series of Securities, stating that such covenants are being
included solely for the benefit of such series) or to surrender any
right or power herein conferred upon the Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities,
to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate
the issuance of Securities in uncertificated form; PROVIDED that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
69
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 803 or 1006 or otherwise; or
(7) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 610(b); or
(9) to close this Indenture with respect to the
authentication and delivery of additional series of Securities; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect; or
(11) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture, or to make any other provisions with respect to matters or
questions arising hereunder or in any supplemental indenture; PROVIDED
such action shall not adversely affect the interests of the Holders of
Securities of any series and any related coupons in any material
respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT
OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities of a series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by or pursuant to a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture which affect such series of Securities
or of modifying in any manner the rights of the Holders of Securities of such
series under this Indenture; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security
of such series,
(1) change the Stated Maturity of the principal of (or
premium, if any) or any installment of interest on any Security of such
series (except to the extent provided by Section 308 herein, if
applicable), or reduce the principal amount thereof (or premium, if
any) or the rate of interest, if any, thereon, or change any obligation
of the Company to
70
pay Additional Amounts contemplated by Section 1005 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount
Security of such series that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of any
Holder of any Security of such series, or change any Place of Payment
where, or the Currency in which, any Security of such series or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at
the option of the Holder, on or after the Redemption Date or Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301
herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of such series required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver of compliance with certain provisions of this Indenture
which affect such series or certain defaults applicable to such series
hereunder and their consequences provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting with
respect to Securities of such series, or
(3) modify any of the provisions of this Section, Section
513 or Section 1009, except to increase any such percentage or to
provide that certain other provisions of this Indenture which affect
such series cannot be modified or waived without the consent of the
Holder of each Outstanding Security of such series.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series. Any such
supplemental indenture adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture, or modifying in any manner
the rights of the Holders of Securities of such series, shall not affect the
rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
71
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL (PREMIUM, IF ANY)
AND INTEREST.
The Company covenants and agrees for the benefit of the
Holders of each series of Securities and any related coupons that it will duly
and punctually pay the principal of (and premium, if any) and interest, if any,
on the Securities of that series in accordance with the terms of the Securities,
any coupons appertaining thereto and this Indenture. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest installments due on Bearer Securities on or before Maturity shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If the Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of
72
that series may be surrendered for registration of transfer or exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served.
If Securities of a series are issuable as Bearer Securities,
the Company will maintain (A) in New York, New York an office or agency where
any Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise) (B) subject to any laws
or regulations applicable thereto, in a Place of Payment for that series which
is located outside the United States, an office or agency where Securities of
that series and related coupons may be presented and surrendered for payment;
PROVIDED, HOWEVER, that, if the Securities of that series are listed on any
securities exchange located outside the United States and such securities
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in any required city located outside the United States
so long as the Securities of that series are listed on such exchange, and (C)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible and exchangeable may be
surrendered for conversion or exchange, as applicable and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served.
The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish in writing the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of any
series and the related coupons may be presented and surrendered for payment at
the offices specified in the Security, in London, and the Company hereby
appoints the same as its agents to receive such respective presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; PROVIDED,
HOWEVER, that, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any) and interest, if any, on any Bearer Security
shall be made at the office of the Company's Paying Agent in New York, New York
if (but only if) payment in Dollars of the full amount of such principal,
premium or interest, as the case may be, at all offices or agencies outside the
United States maintained for such purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
73
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind any such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities as contemplated by Section 301 with respect to a
series of Securities, the Company hereby designates as a Place of Payment for
each series of Securities the Corporate Trust Office in New York, New York and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Currency other than Dollars or (ii) may be payable in a
Currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (or premium, if any) or interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, prior to or on each
due date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent (other than the
Trustee) for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) and interest, if any, on Securities
of such series in trust for the benefit of the
74
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities of such series) in
the making of any payment of principal of (or premium, if any) or
interest, if any, on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (or premium, if any) or interest, if
any, on any Security of any series, or any coupon appertaining thereto, and
remaining unclaimed for two years (or such shorter period as may be specified in
the applicable abandoned property statutes) after such principal, premium or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or coupon shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 140 days after
the end of each fiscal year, a brief certificate from the Chief Executive
Officer, the Chief Financial Officer or the Controller of the Company as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 1004, such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1005. ADDITIONAL AMOUNTS.
(a) Unless otherwise provided pursuant to Section 301, all
payments made by or on behalf of the Company 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
75
and other liabilities related thereto) imposed or levied by or on
behalf of the Government of Canada or of any province or territory
thereof or by any authority or agency therein or thereof having power
to tax (hereinafter "CANADIAN TAXES"), unless the Company is required
to withhold or deduct Canadian Taxes by law or by the interpretation or
administration thereof. If the Company is so required to withhold or
deduct any amount for or on account of Canadian Taxes from any payment
made under or with respect to the Securities, the Company will pay to
each Holder as additional interest such additional amounts ("ADDITIONAL
AMOUNTS") as may be necessary so that the net amount received by each
Holder after such withholding or deduction (and after deducting any
Canadian Taxes on such Additional Amounts) will not be less than the
amount the Holder would have received if such Canadian Taxes had not
been withheld or deducted. However, no Additional Amounts will be
payable with respect to a payment made to a Holder (such Holder, an
"EXCLUDED HOLDER") in respect of the beneficial owner thereof:
(1) with which the Company does not deal at arm's length for
the purposes of the INCOME TAX ACT (Canada) at the time of the making
of such payment;
(2) which is subject to such Canadian Taxes by reason of the
Holder being a resident, domicile or national of, or engaged in
business or maintaining a permanent establishment or other physical
presence in or otherwise having some connection with Canada or any
province thereof otherwise than by the mere holding of Securities or
the receipt of payments thereunder; or
(3) which is subject to such Canadian Taxes by reason of the
Holder's failure to comply with any certification, identification,
information, documentation or other reporting requirements if
compliance is required by law, regulation, administrative practice or
an applicable treaty as a precondition to exemption from, or a
reduction in the rate of deduction or withholding of, such Canadian
Taxes.
The Company will also:
(i) make such withholding or deduction; and
(ii) remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law.
The Company will furnish to the Holders of the Securities,
within 60 days after the date the payment of any Canadian Taxes is due pursuant
to applicable law, certified copies of tax receipts or other documents
evidencing such payment by the Company.
(b) The Company will indemnify and hold harmless each Holder
(other than an Excluded Holder) and, upon written request, reimburse
each such Holder for the amount excluding any of Additional Amounts
that have been previously been paid by the Company with respect thereto
of:
(1) the payment of any Canadian Tax, together with any
interest, penalties and reasonable expenses in connection therewith;
and
76
(2) any Canadian Taxes imposed with respect to any
reimbursement under clause (1) in this paragraph, but excluding any
such Canadian Taxes on such Holder's net income.
At least five (5) days prior to each date on which any payment
under or with respect to the Securities is due and payable, if the Company will
be obligated to pay Additional Amounts with respect to such payment, the Company
will deliver to the Trustee an Officer's Certificate stating the fact that such
Additional Amounts will be payable and specifying the amounts so payable and
will set forth such other information necessary to enable the Trustee to pay
such Additional Amounts to Holders on the payment date.
Notwithstanding the foregoing, no Additional Amounts or
indemnity amounts will be payable in excess of Additional Amounts or indemnity
amounts which would be required if the Holder of the Securities was a resident
of the United States for purposes of the Canada-U.S. Income Tax Convention
(1980), as amended.
Wherever in this Indenture or the Securities there is
mentioned, in any context, the payment of principal (and premium, if any),
interest or any other amount payable under or with respect to a Security, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
SECTION 1006. LIMITATION ON LIENS.
So long as any Securities are Outstanding and subject to the
terms of this Indenture, the Company will not, and will not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise have outstanding
any Lien securing any indebtedness for borrowed money or interest thereon (or
any liability of the Company or such Restricted Subsidiaries under any guarantee
or endorsement or other instrument under which the Company or such Restricted
Subsidiaries are contingently liable, either directly or indirectly, for
borrowed money or interest thereon), other than Permitted Liens, without also
simultaneously or prior thereto securing, or causing such Restricted
Subsidiaries to secure, indebtedness under this Indenture so that the Securities
are secured equally and ratably with or prior to such other indebtedness or
liability, except that the Company and its Restricted Subsidiaries may incur a
Lien to secure indebtedness for borrowed money without securing the Securities
if, after giving effect thereto, the principal amount of indebtedness for
borrowed money secured by Liens created, incurred or assumed after the date
hereof and otherwise prohibited by this Indenture does not exceed 10% of the
Company's Consolidated Net Tangible Assets.
Notwithstanding the foregoing, transactions such as the sale
(including any forward sale) or other transfer of: (i) oil, gas, minerals or
other resources of a primary nature, whether in place or when produced, for a
period of time until, or in an amount such that, the purchaser will realize
therefrom a specified amount of money or a specified rate of return (however
determined), or a specified amount of such oil, gas, minerals, or other
resources of a primary nature, or (ii) any other interest in property of the
character commonly referred to as a "PRODUCTION PAYMENT", will not constitute a
Lien and will not result in the Company or a Restricted Subsidiary being
required to secure the Securities.
77
SECTION 1007. PAYMENT OF TAXES.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment or charge whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
SECTION 1008. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and statutory) and franchises of the
Company and any Restricted Subsidiary; provided, however, that the Company shall
not be required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole.
SECTION 1009. WAIVER OF CERTAIN COVENANTS.
The Company may, with respect to any series of Securities,
omit in any particular instance to comply with any term, provision or condition
which affects such series set forth in Section 803 or Sections 1006 through 1008
inclusive or, as specified pursuant to Section 301(17) for Securities of such
series, in any covenants of the Company added to Article Ten pursuant to Section
301(16) or Section 301(17) in connection with Securities of such series, if
before the time for such compliance the Holders of at least a majority in
principal amount of all Outstanding Securities of any series, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
to Holders of Securities of such series in respect of any such term, provision
or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with the terms of such
Securities and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a
78
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 1103. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officer's Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO
BE REDEEMED.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 90 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities of such
series; PROVIDED, HOWEVER, that no such partial redemption shall reduce the
portion of the principal amount of a Security not redeemed to less than the
minimum authorized denomination for Securities of such series established
pursuant to Section 301.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Except as otherwise specified as contemplated by Section 301,
notice of redemption shall be given in the manner provided for in Section 106
not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Securities to be redeemed. Failure to give notice in the manner
provided in Section 106 to the Holder of any Securities designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest
to the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed,
79
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price unless security or indemnity satisfactory to
the Company, the Trustee and any Paying Agent is furnished, and
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
At or prior to 10:00 a.m. (New York, New York time) on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the Redemption Price of, and accrued interest, if any, on, all the Securities
which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
80
applicable, as provided in Sections 312(b), 312(d) and 312(e)) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED FURTHER, that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part (pursuant to
the provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
81
SECTION 1108. TAX REDEMPTION.
Unless otherwise specified pursuant to Section 301, the
Company shall have the right to redeem, at any time, the Securities of a series,
in whole but not in part, at a redemption price equal to the principal amount
thereof together with accrued and unpaid interest to the date fixed for
redemption, upon the giving of a notice as described below, if (1) the Company
(or its successor) determines that (a) as a result of any change in or amendment
to the laws (or any regulations or rulings promulgated thereunder) of Canada or
of any political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding application or
interpretation of such laws, regulations or rulings (including a holding by a
court of competent jurisdiction), which change or amendment is announced or
becomes effective on or after a date specified pursuant to Section 301, if any
date is so specified, the Company has or will become obligated to pay, on the
next succeeding date on which interest is due, Additional Amounts pursuant to
Section 1005 or (b) on or after a date specified pursuant to Section 301, any
action has been taken by any taxing authority of, or any decision has been
rendered by a court of competent jurisdiction in, Canada or any political
subdivision or taxing authority thereof or therein, including any of those
actions specified in (a) above, whether or not such action was taken or decision
was rendered with respect to the Company, or any change, amendment, application
or interpretation shall be officially proposed, which, in any such case, in the
Opinion of Counsel to the Company, will result in the Company 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
Company in its business judgment determines that such obligation cannot be
avoided by the use of reasonable measures available to the Company; PROVIDED,
HOWEVER, that (i) no such notice of redemption may be given earlier than 60 or
later than 30 days prior to the earliest date on which the Company would be
obligated to pay such Additional Amounts were a payment in respect of the
Securities then due, and (ii) at the time such notice of redemption is given,
such obligation to pay such Additional Amounts remains in effect.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
Retirements of Securities of any series pursuant to any
sinking fund shall be made in accordance with the terms of such Securities and
(except as otherwise specified as contemplated by Section 301 for Securities of
any series) in accordance with this Article.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "MANDATORY
SINKING FUND PAYMENT", and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"OPTIONAL SINKING FUND PAYMENT". If provided for by the terms of Securities of
any series, the cash amount of any mandatory sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
82
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS
WITH SECURITIES.
Subject to Section 1203, in lieu of making all or any part of
any mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; PROVIDED, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities (unless a shorter period shall be satisfactory to
the Trustee), the Company will deliver to the Trustee an Officer's Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering or crediting Securities of that series pursuant to
Section 1202 (which Securities will, if not previously delivered, accompany such
certificate) and whether the Company intends to exercise its right to make a
permitted optional sinking fund payment with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. In the case of the
failure of the Company to deliver such certificate, the sinking fund payment due
on the next succeeding sinking fund payment date for that series shall be paid
entirely in cash and shall be sufficient to redeem the principal amount of such
Securities subject to a mandatory sinking fund payment without the option to
deliver or credit Securities as provided in Section 1202 and without the right
to make any optional sinking fund payment, if any, with respect to such series.
Not more than 60 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
83
On or prior to 10:00 a.m. (New York, New York time) on any
sinking fund payment date, the Company shall pay to the Trustee or a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) in cash a sum equal to any interest that
will accrue to the date fixed for redemption of Securities or portions thereof
to be redeemed on such sinking fund payment date pursuant to this Section 1203.
Notwithstanding the foregoing, with respect to a sinking fund
for any series of Securities, if at any time the amount of cash to be paid into
such sinking fund on the next succeeding sinking fund payment date, together
with any unused balance of any preceding sinking fund payment or payments for
such series, does not exceed in the aggregate $100,000, the Trustee, unless
requested by the Company, shall not give the next succeeding notice of the
redemption of Securities of such series through the operation of the sinking
fund. Any such unused balance of moneys deposited in such sinking fund shall be
added to the sinking fund payment for such series to be made in cash on the next
succeeding sinking fund payment date or, at the request of the Company, shall be
applied at any time or from time to time to the purchase of Securities of such
series, by public or private purchase, in the open market or otherwise, at a
purchase price for such Securities (excluding accrued interest and brokerage
commissions, for which the Trustee or any Paying Agent will be reimbursed by the
Company) not in excess of the principal amount thereof.
ARTICLE THIRTEEN
REPAYMENT AT OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified as contemplated by
Section 301 for Securities of any series) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES.
Securities of any series subject to repayment in whole or in
part at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at a price equal to the principal amount
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants
that on or before the Repayment Date it will deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and except,
if applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the 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.
84
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places or which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire principal amount of such
Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of the principal amount of such Security surrendered that is not to be
repaid, must be specified. The principal amount of any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part. Except as otherwise may be provided
by the terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE.
If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER, that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the
85
face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall surrender
to the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be
repaid in part only, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge
and at the expense of the Company, a new Registered Security or Securities of
the same series, of any authorized denomination specified by the Holder, in an
aggregate principal amount equal to and in exchange for the portion of the
principal of such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the provisions of this Article Fourteen shall
apply to each series of Securities, and the Company may, at its option, effect
defeasance (as defined below) of the Securities of or within a series under
Section 1402, or covenant defeasance (as defined below) of or within a series
under Section 1403 in accordance with the terms of such Securities and in
accordance with this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any related coupons on the date the conditions
set forth in Section 1404 are satisfied (hereinafter, "DEFEASANCE"). For this
purpose, such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any related coupons, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 1405 and the other Sections of this Indenture
referred to in (A) and (B) below, and to
86
have satisfied all its other obligations under such Securities and any related
coupons and this Indenture insofar as such Securities and any related coupons
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any related coupons to receive,
solely from the trust fund described in Section 1404 and as more fully set forth
in such Section, payments in respect of the principal of (and premium, if any)
and interest, if any, on such Securities and any related coupons when such
payments are due, (B) the Company's obligations with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1005,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligation under Section 607 and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section 1402 notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any related coupons.
SECTION 1403. COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall be released from its obligations under Section 803 and Sections 1006
through 1008 inclusive and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any related coupons on and after the date the conditions set
forth in Section 1404 are satisfied (hereinafter, "COVENANT DEFEASANCE"), and
such Securities and any related coupons shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "OUTSTANDING" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any related coupons, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under Section 501(3) or otherwise, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
related coupons shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE.
The following shall be the conditions to application of either
Section 1402 or Section 1403 to any Outstanding Securities of or within a series
and any related coupons:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an amount (in
such Currency in which such Securities and any
87
related coupons are then specified as payable at Stated Maturity), or
(B) Government Obligations applicable to such Securities (determined on
the basis of the Currency in which such Securities are then specified
as payable at Stated Maturity) which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment of principal of (and premium, if any), and interest, if any,
under such Securities and any related coupons, money in an amount, or
(C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants (which shall be
expressed in a written certification thereof delivered to the Company,
that is attached to an Officer's Certificate delivered to the Trustee),
to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding
Securities and any related coupons on the Stated Maturity (or
Redemption Date, if applicable) of such principal (and premium, if any)
or installment of interest, if any, and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding
Securities and any related coupons on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
of such Securities and any related coupons; PROVIDED that the Trustee
shall have been irrevocably instructed to apply such money or the
proceeds of such Government Obligations to said payments with respect
to such Securities and any related coupons. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1102
hereof, a notice of its election to redeem all or any portion of such
Outstanding Securities at a future date in accordance with the terms of
the Securities of such series and Article Eleven hereof, which notice
shall be irrevocable. Such irrevocable redemption notice, if given,
shall be given effect in applying the foregoing.
(2) No Default or Event of Default with respect to such
Securities or any related coupons shall have occurred and be continuing
on the date of such deposit or, insofar as paragraphs (5) and (6) of
Section 501 are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(4) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States stating that (x) the Company has received from, or
there has been published by, the Internal Revenue Service a ruling, or
(y) since the date of execution of this Indenture, there has been a
change in the applicable U.S. federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any related coupons will not
recognize income, gain or loss for federal income tax purposes as a
result of such defeasance and will be subject to federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
88
(5) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations in
connection therewith pursuant to Section 301.
(6) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
(7) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States to the effect that the Holders of such Outstanding
Securities will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
covenant defeasance had not occurred.
(8) Either the Company has delivered to the Trustee an
Opinion of Counsel in Canada or a ruling from Canada Revenue Agency to
the effect that the Holders of such Outstanding Securities will not
recognize income, gain or loss for Canadian federal or provincial
income tax or other tax purpose as a result of such defeasance or
covenant defeasance and will be subject to Canadian federal or
provincial income tax and other tax on the same amounts, in the same
manner and at the same times as would have been the case had such
defeasance not occurred (and for the purposes of such opinion, such
Canadian counsel shall assume that Holders of the Securities include
Holders who are not resident in Canada).
(9) The Company is not an "insolvent person" within the
meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada) on the date of
such deposit or at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(10) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that such deposit shall not cause the Trustee or
the trust so created to be subject to the Investment Company Act of
1940, as amended.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
1405, the "Trustee") pursuant to Section 1404 in respect of such Outstanding
Securities and any related coupons shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any related
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any related coupons
of all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, if any, but such money need not be segregated from other
funds except to the extent required by law.
89
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(1) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(1) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the Currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable Market Exchange Rate
for such Currency in effect on the third Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company 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 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
related coupons.
Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of, a nationally recognized firm of independent public accountants
(evidenced by an Officer's Certificate) delivered to the Trustee, are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT.
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 1405 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; PROVIDED, HOWEVER, that if the Company makes any
payment of principal of (or premium, if any) or interest, if any, on any such
Security or any related coupon following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
and any related coupons to receive such payment from the money held by the
Trustee or Paying Agent.
90
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of one or more series of Securities may
be called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to
be held at such time and at such place in New York, New York, in
Calgary, Alberta or in London, England as the Trustee shall determine.
Notice of every meeting of Holders of one or more series of Securities,
setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given,
in the manner provided for in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee
to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 1501, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of
such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company 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 New York, New York in Calgary, Alberta or in London,
England for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in paragraph (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Securities of such
series by such Holder of Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Person entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such
91
series; PROVIDED, HOWEVER, that, if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum, the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series who have cast their votes; PROVIDED, HOWEVER, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly reconvened and at which a quorum is present
as aforesaid by the affirmative vote of the Holders of not less than such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for
such meeting; and
92
(ii) the principal amount of the Outstanding
Securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or
other action shall be taken into account in determining
whether such request, demand, authorization, direction,
notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities of a series in regard to proof
of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of
votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as its shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and
the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in
Section 1502(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount
of Outstanding Securities of such series held or represented by him
(determined as specified in the definition of "Outstanding" in Section
101); PROVIDED, HOWEVER, that no vote shall be cast or counted at any
meeting in respect of any Security challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series
represented at the meeting; and the meeting may be held as so adjourned
without further notice.
93
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in 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 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. COUNTERPARTS.
This Indenture may be executed in any number of counterparts
(either by facsimile or by original manual signature) each of which so executed
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same Indenture.
* * * * *
94
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
ENCANA CORPORATION
By:
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice-President &
Chief Financial Officer
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
THE BANK OF NEW YORK,
as Trustee
By:
----------------------------------
Name:
Title:
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
ENCANA CORPORATION
[Insert title of sufficient description of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("UNITED STATES PERSON(S)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise EnCana Corporation or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by
A-1-1
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 applies as of
such date.
This certificate excepts and does not relate to [U.S.$]
[________] of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a permanent global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
----------------------------------
Name:
Title:
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM
IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A
TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
ENCANA CORPORATION
[Insert title of sufficient description of Securities to be delivered]
This is to certify that based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
[_______] principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("UNITED STATES PERSON(S)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise EnCana
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
A-2-1
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[EUROCLEAR BANK S.A./N.A, as Operator
of the Euroclear System]
[CLEARSTREAM]
By
-------------------------------------
A-2-2