EXHIBIT 7.1
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HUSKY ENERGY INC.,
as Issuer
and
THE BANK OF NOVA SCOTIA TRUST
COMPANY OF NEW YORK,
as Trustee
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Indenture
Dated as of _____, 2004
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TABLE OF CONTENTS
PAGE NO.
PARTIES .......................................................................1
RECITALS OF THE COMPANY........................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........1
SECTION 101. Definitions.....................................................1
SECTION 102. Compliance Certificates and Opinions...........................14
SECTION 103. Form of Documents Delivered to Trustee.........................14
SECTION 104. Acts of Holders................................................15
SECTION 105. Notices, etc. to Trustee and Company...........................17
SECTION 106. Notice to Holders; Waiver......................................17
SECTION 107. Effect of Headings and Table of Contents.......................18
SECTION 108. Successors and Assigns.........................................18
SECTION 109. Separability Clause............................................18
SECTION 110. Benefits of Indenture..........................................18
SECTION 111. Governing Law..................................................19
SECTION 112. Legal Holidays.................................................19
SECTION 113. Agent for Service; Submission to Jurisdiction; Waiver
of Immunities....................... ..........................19
SECTION 114. Conversion of Currency.........................................20
SECTION 115. Currency Equivalent............................................21
SECTION 116. Conflict with the Trust Indenture Act..........................21
SECTION 117. Incorporators, Shareholders, Officers and Directors of the
Company Exempt from Individual Liability. .....................21
SECTION 118. Security Interest......................................22
ARTICLE TWO SECURITIES FORMS...............................................22
SECTION 201. Forms Generally................................................22
SECTION 202. Form of Trustee's Certificate of Authentication ...............23
SECTION 203. Securities Issuable in Global Form.............................23
ARTICLE THREE THE SECURITIES.................................................24
SECTION 301. Amount Unlimited; Issuable in Series ..........................24
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 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
(i)
SECTION 312. Currency and Manner of Payments in Respect of
Securities.....................................................42
SECTION 313. Appointment and Resignation of Successor Exchange
Rate Agent.....................................................46
ARTICLE FOUR SATISFACTION AND DISCHARGE.....................................46
SECTION 401. Satisfaction and Discharge of Indenture........................46
SECTION 402. Application of Trust Money.....................................48
ARTICLE FIVE REMEDIES.......................................................48
SECTION 501. Events of Default..............................................48
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............50
SECTION 503. Collection of Debt and Suits for Enforcement byTrustee.........52
SECTION 504. Trustee May File Proofs of Claim...............................52
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...53
SECTION 506. Application of Money Collected.................................53
SECTION 507. Limitation on Suits............................................54
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest...........................................55
SECTION 509. Restoration of Rights and Remedies.............................55
SECTION 510. Rights and Remedies Cumulative.................................55
SECTION 511. Delay or Omission Not Waiver...................................55
SECTION 512. Control by Holders.............................................55
SECTION 513. Waiver of Past Defaults........................................56
SECTION 514. Waiver of Stay or Extension Laws...............................56
ARTICLE SIX THE TRUSTEE....................................................56
SECTION 601. Notice of Defaults.............................................56
SECTION 602. Certain Duties and Responsibilities of Trustee.................57
SECTION 603. Certain Rights of Trustee......................................58
SECTION 604. Trustee Not Responsible for Recitals or Issuance of Securities.60
SECTION 605. May Hold Securities............................................60
SECTION 606. Money Held in Trust............................................60
SECTION 607. Compensation and Reimbursement.................................60
SECTION 608. Corporate Trustee Required; Eligibility........................61
SECTION 609. Resignation and Removal; Appointment of Successor..............62
SECTION 610. Acceptance of Appointment by Successor.........................63
SECTION 611. Merger, Conversion, Consolidation or Succession to Business....64
SECTION 612. Appointment of Authenticating Agent............................65
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............66
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders......66
SECTION 702. Preservation of List of Names and Addresses of Holders.........67
SECTION 703. Disclosure of Names and Addresses of Holders...................67
SECTION 704. Reports by Trustee.............................................67
SECTION 705. Reports by the Company.........................................67
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...........69
(ii)
SECTION 801. Company May Consolidate, etc., Only on Certain Terms...........69
SECTION 802. Successor Person Substituted...................................70
SECTION 803. Securities to Be Secured in Certain Events.....................70
ARTICLE NINE SUPPLEMENTAL INDENTURES........................................71
SECTION 901. Supplemental Indentures Without Consent of Holders.............71
SECTION 902. Supplemental Indentures with Consent of Holders................72
SECTION 903. Execution of Supplemental Indentures...........................74
SECTION 904. Effect of Supplemental Indentures..............................74
SECTION 905. Conformity with the Trust Indenture Act........................74
SECTION 906. Reference in Securities to Supplemental Indentures.............74
SECTION 907. Notice of Supplemental Indentures..............................74
ARTICLE TEN COVENANTS......................................................74
SECTION 1001. Payment of Principal, Premium, if any, and Interest............74
SECTION 1002. Maintenance of Office or Agency................................75
SECTION 1003. Money for Securities Payments to Be Held in Trust..............76
SECTION 1004. Statement as to Compliance and Notice of Default...............77
SECTION 1005. Additional Amounts.............................................78
SECTION 1006. Payment of Taxes and Other Claims..............................79
SECTION 1007. Corporate Existence............................................80
SECTION 1008. Limitation on Liens............................................80
SECTION 1009. Waiver of Certain Covenants....................................84
SECTION 1010. Calculation of Original Issue Discount.........................84
ARTICLE ELEVEN REDEMPTION OF SECURITIES.......................................84
SECTION 1101. Applicability of Article.......................................84
SECTION 1102. Election to Redeem; Notice to Trustee..........................84
SECTION 1103. Selection by Trustee of Securities to be Redeemed..............85
SECTION 1104. Notice of Redemption...........................................85
SECTION 1105. Deposit of Redemption Price....................................86
SECTION 1106. Securities Payable on Redemption Date..........................86
SECTION 1107. Securities Redeemed in Part....................................87
SECTION 1108. Tax Redemption.................................................88
ARTICLE TWELVE SINKING FUNDS..................................................88
SECTION 1201. Applicability of Article.......................................88
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..........89
SECTION 1203. Redemption of Securities for Sinking Fund......................89
ARTICLE THIRTEEN REPAYMENT AT OPTION OF HOLDERS...............................90
SECTION 1301. Applicability of Article.......................................90
SECTION 1302. Repayment of Securities........................................90
SECTION 1303. Exercise of Option.............................................91
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable....................................................91
SECTION 1305. Securities Repaid in Part......................................92
(iii)
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE...........................92
SECTION 1401. Company's Option to Effect Defeasance or Covenant Defeasance..92
SECTION 1402. Defeasance and Discharge.......................................92
SECTION 1403. Covenant Defeasance............................................93
SECTION 1404. Conditions to Defeasance or Covenant Defeasance................93
SECTION 1405. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions..........................96
SECTION 1406. Reinstatement..................................................97
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES.............................97
SECTION 1501. Purposes for Which Meetings May Be Called......................97
SECTION 1502. Call, Notice and Place of Meetings.............................97
SECTION 1503. Persons Entitled to Vote at Meetings...........................98
SECTION 1504. Quorum; Action.................................................98
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings ...................................................99
SECTION 1506. Counting Votes and Recording Action of Meetings...............100
SECTION 1507. COUNTERPARTS..................................................100
TESTIMONIUM .................................................................
SIGNATURE AND SEALS ............................................................
FORMS OF CERTIFICATION ................................................EXHIBIT A
NOTE:
THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE PART
OF THE INDENTURE.
(iv)
HUSKY ENERGY INC.
Reconciliation and tie between the
TRUST INDENTURE ACT OF 1939 and Indenture dated as of _____, 2004
Trust Indenture
Act Section Indenture Section
ss.310(a)............................................. 608(a)
(b)............................................. 609
(c)............................................. Not Applicable
ss.311(a), (b)........................................ 504
(c)............................................. Not Applicable
ss.312(a)............................................. 703
(b)............................................. 702
(c)............................................. 701
ss.313(a), (b), (c)................................... 702
(d)............................................. 703
ss.314(a)............................................. 705
(a)(4).......................................... 1004
(b)............................................. 803
(c)(1), (2)..................................... 102
(d)............................................. 803
(e)............................................. 102
(f)............................................. Not Applicable
ss.315(a)............................................. 602
(b)............................................. 601
(c), (d)........................................ 602
(e)............................................. 515
ss.316(a)(last
sentence)........................................... 101 ("Outstanding")
(a)(1)(A)....................................... 502
(a)(1)(B)....................................... 502, 513
(a)(2).......................................... Not Applicable
(b)............................................. 508
(c)............................................. 104(e)
ss.317(a)(1).......................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
ss.318(a)............................................. 116
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
INDENTURE, dated as of _____, 200__ between HUSKY ENERGY INC., a
corporation duly incorporated and existing under the laws of the Province of
Alberta, Canada (herein called the "Company"), having its principal executive
offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and THE BANK
OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, a New York trust company, 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 in
this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
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 a 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, and the terms "cash
transaction" and "self-liquidating paper", as used in TIA
Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
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(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision;
(5) words implying any gender shall apply to 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
pursuant to Section 612 to act on behalf of the Trustee to authenticate
Securities.
"AUTHORIZED NEWSPAPER" means a newspaper (which in the case of Canada,
will, if practicable, be The Globe & Mail, in the case of The City of New York,
will, if practicable, be The Wall Street Journal (Eastern Edition), in the case
of the United Kingdom will, if practicable, be The Financial Times (London
Edition) and, in the case of Luxembourg, will, if practicable, be The Luxembourg
(Wort), in the English language or in an official language of the country of
publication, customarily published on each Business Day, whether or not
published on Saturdays, Sundays or holidays, and of general circulation in
Canada, The City of 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 such board.
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"BOARD RESOLUTION" means a copy of a resolution certified by any
officer 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, Sunday or any other day on which
commercial banking institutions in that Place of Payment or other location are
permitted or required by any applicable law, regulation or executive order to
close.
"CALCULATION PERIOD" has the meaning specified in Section 311.
"CANADIAN TAXES" has the meaning specified in Section 1005.
"CAPITAL LEASE OBLIGATION" means the obligation of a Person, as lessee,
to pay rent or other amounts to the lessor under a lease of real or personal
property which is required to be classified and accounted for as a capital lease
on a consolidated balance sheet of such Person in accordance with GAAP.
"CLEARSTREAM" means Clearstream Banking, societe anonyme, or its
successor.
"COLLATERAL DOCUMENTS" means, in connection with the issuance under
this Indenture pursuant to Section 301 of any series of Securities secured
pursuant to Section 301 hereof, any agreement or agreements creating or relating
to any security interest securing the due and punctual payment of all amounts at
any time owing under such series of Securities.
"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 chief executive officer, the
chief financial officer, the chairman, the president, any vice president, the
controller, the treasurer or the 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.
"COMPONENT CURRENCY" has the meaning specified in Section 312.
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"CONSOLIDATED NET TANGIBLE ASSETS" means the total amount of assets of
the Company on a consolidated basis after deducting therefrom:
(i) all current liabilities (excluding 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 similar intangibles;
and
(iii) appropriate adjustments on account of minority interests of
other persons holding stock of the Company's Subsidiaries;
in each case, as shown on the most recent annual audited or quarterly unaudited
consolidated balance sheet of the Company and its consolidated Subsidiaries and
computed in accordance with GAAP.
"CONVERSION DATE" has the meaning specified in Section 312.
"CONVERSION EVENT" means the cessation of use of (i) Foreign Currency
(other than the Euro) 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, (ii) the
Euro or (iii) any currency unit (or composite currency) other than the Euro for
the purposes for which it was established.
"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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Officer, 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, composite currency or
currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any recognized confederation or
association of such governments.
"CURRENT ASSETS" means current assets as determined in accordance with
GAAP.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
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"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DEFEASANCE" has the meaning specified in Section 1402.
"DEPOSITARY" means The Depository Trust Company, or any successor
thereto, or any other Person designated pursuant to Section 301.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DOLLAR EQUIVALENT OF THE CURRENCY UNIT" has the meaning specified in
Section 312(g). "DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY" has the meaning
specified in Section 312(f).
"ELECTION DATE" has the meaning specified in Section 312(h).
"EURO" means the single currency of the participating member states
from time to time of the European Union described in legislation of the European
Counsel for the Operation of a single unified European currency (whether known
as the Euro or otherwise).
"EUROCLEAR" means Euroclear Bank S.A./N.V., or its successor as
operator of the Euroclear System.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended.
"EXCHANGE DATE" has the meaning specified in Section 304.
"EXCHANGE RATE AGENT" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York clearing house bank, designated pursuant to Section
30l or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a tested telex or a
certificate setting forth (i) the applicable Market Exchange Rate and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section
302 in the relevant Currency), payable with respect to a Security of any series
on the basis of such Market Exchange Rate, sent (in the case of a telex) or
signed (in the case of a certificate) by any Company Officer.
"EXCLUDED HOLDER" has the meaning specified in Section 1005.
"EXTENSION NOTICE" has the meaning specified in Section 308.
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"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 liquifying facilities, flares, stacks
and burning towers; flotation ▇▇▇▇▇, 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 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;
(ii) currency swap agreements, cross-currency agreements, forward
agreements, floor, cap or collar agreements, futures or
options, insurance or other similar agreements or
arrangements, or any combination thereof, entered into by a
Person relating to currency exchange rates or pursuant to
which the price, value or amount payable thereunder is
dependent or based upon currency exchange rates in effect from
time to time or fluctuations in currency exchange rates
occurring from time to time; and
(iii) commodity swap or hedging agreements, floor, cap or collar
agreements, commodity futures or options or other similar
agreements or arrangements, or any combination thereof,
entered into by a Person relating to one or more commodities
or pursuant to which the price, value or amount payable
thereunder is dependent or based upon the price of one or more
commodities in effect from time to time or fluctuations in the
price of one or more commodities occurring from time to time.
"FIRST CURRENCY" has the meaning specified in Section 115.
"FOREIGN CURRENCY" means any Currency other than Currency of the United
States.
"GAAP" means generally accepted accounting principles in Canada in
which the Company reports its financial statements and which are in effect from
time to time, unless the
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Company's most recent audited or quarterly unaudited financial statements are
not prepared in accordance with Canadian generally accepted accounting
principles, 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.
"INDEBTEDNESS" means, as at the date of determination, all items of
indebtedness in respect of any amounts borrowed which, in accordance with GAAP,
would be recorded as debt in the consolidated financial statements of any
Person, including:
(i) any obligation for borrowed money;
(ii) any obligation evidenced by bonds, debentures, notes, or other
similar instruments;
(iii) any Capital Lease Obligation;
(iv) any payment obligation under Financial Instrument Obligations;
and
(v) any guarantee of Indebtedness of another Person (without
duplication).
"INDENTURE" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities for which such Person is Trustee
-8-
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.
"ISSUE DATE," when used with respect to a series of Securities, means
the date the Securities of such series are first issued.
"JUDGMENT CURRENCY" has the meaning specified in Section 114.
"MANDATORY SINKING FUND PAYMENT" has the meaning specified in Section
1201.
"MARKET EXCHANGE RATE" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (i) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (ii) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in New York City, Toronto, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, Toronto, London or another
principal market for the Currency in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
Currency by reason of foreign exchange regulations or otherwise, the market to
be used in respect of such Currency
-9-
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 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 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 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, which shall comply with
this Indenture, signed by a 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.
"OPTIONAL SINKING FUND PAYMENT" has the meaning specified in Section
1201.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"ORIGINAL STATED MATURITY" has the meaning specified in Section 308.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder, money in
the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto; PROVIDED
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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, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar Equivalent of the Foreign Currency, 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 of the
Foreign Currency as of such date of original issuance of the amount determined
as provided in clause (i) above) of such Security, (iii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Security pursuant to Section 30l,
and (iv) 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.
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"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.
"PERSON" means any individual, corporation, body corporate,
partnership, joint venture, limited liability company, 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, each place where the principal of (and premium, if any)
and interest, if any, on such Securities are payable in the United States and
Canada, 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.
"PROPERTY" means all property owned by the Company or a Restricted
Subsidiary, except such property which is determined by a resolution of the
Board of Directors delivered to the Trustee, not to be property of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries.
"RATE(S) OF EXCHANGE" has the meaning specified in Section 114.
"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, plus accrued and unpaid interest thereon to the
Redemption Date.
"REGISTERED SECURITY" means any Security registered in the Security
Register.
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301.
"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment pursuant
to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid
pursuant to this Indenture.
"REQUIRED CURRENCY" has the meaning specified in Section 114.
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"RESET NOTICE" has the meaning specified in Section 307.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
vice president, 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 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 SUBSIDIARY" means a Subsidiary of the Company provided,
HOWEVER, such term shall not include any Subsidiary of the Company if the amount
of the Company's share of the consolidated net tangible assets of such
Subsidiary does not, at the time of determination, exceed 2% of Consolidated Net
Tangible Assets.
"SECURITIES" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, HOWEVER, that if at any time there is more than
one Person acting as Trustee under this Indenture, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of any series as to which such Person is not Trustee.
"SECURITY INTEREST" means any security by way of an assignment,
mortgage, charge, pledge, lien, encumbrance, title retention agreement or other
security interest whatsoever, howsoever created or arising, whether absolute or
contingent, fixed or floating, perfected or not, but not including any security
interest in respect of a lease which is not a Capital Lease Obligation or any
encumbrance that may be deemed to arise solely as a result of entering into an
agreement not in violation of the terms of the Indenture to sell or otherwise
transfer assets or property.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SHAREHOLDERS' EQUITY" means the aggregate amount of shareholders'
equity (including but not limited to share capital, contributed surplus and
retained earnings) of the Company as shown on the most recent annual audited or
quarterly unaudited consolidated balance sheet of the Company and computed in
accordance with GAAP.
"SIGNIFICANT SUBSIDIARY" of any Person means, at the date of
determination, any Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1-02 of Regulation S-X under the
Exchange Act.
"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.
"SPECIFIED AMOUNT" has the meaning specified in Section 312.
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"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.
"SUBSIDIARY" of any Person means, at the date of determination, 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.
"SUBSEQUENT INTEREST PERIOD" has the meaning specified in Section 307.
"TRUST INDENTURE ACT" or "TIA" means the United States Trust Indenture
Act of 1939, as amended, 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" or "U.S." means, unless otherwise specified with
respect to any Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"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 a corporation having under
all circumstances the right to vote for the election of the directors of such
corporation, PROVIDED that, for the purpose of this definition, shares which
only carry the right to vote conditionally on the happening of an event shall
not be considered Voting Shares whether or not such event shall have happened.
-14-
"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 application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an 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.
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 may certify or give an opinion 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 an Opinion of Counsel, a
certificate 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
-15-
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. Any certificate or
opinion of any independent firm of public accountants filed with the Trustee
shall contain a statement that such firm is independent.
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
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 to 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
-16-
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 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.
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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 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, Attention: Chief Financial Officer,
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇ or such other officer or
facsimile number as the Company may designate on written
notice to the Trustee, 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 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 The City of New York and in such other city or cities as
may be specified in such Securities on a Business Day at least twice, the first
such publication to be not earlier than the earliest date, and not later than
the latest date,
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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 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 of 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.
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.
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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 laws. The 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 or other location contemplated hereunder,
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 or other location contemplated hereunder on such date,
but may be made on the next succeeding Business Day at such Place of Payment or
other location contemplated hereunder 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, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 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 The City of New York or brought under
federal or state securities laws, or brought by the Trustee (whether in its
individual capacity or in its capacity as Trustee hereunder), (ii) irrevocably
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 System
and written notice of said service to the Company (mailed or delivered to the
Company, attention: Chief Financial Officer, at its principal executive offices
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 System in full force and effect so
long as any of the Securities shall be outstanding.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Company hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Securities, to the extent permitted by law.
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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:
(i) If for the purposes of obtaining judgment in, or enforcing the
judgment of, any court in any country, it becomes necessary to
convert into a currency (the "JUDGMENT CURRENCY") an amount
due or contingently due under the Securities of any series and
this Indenture (the "REQUIRED CURRENCY"), then the conversion
shall be made at the rate of exchange prevailing on the
Business Day before the day on which a final judgment which is
not appealable or is not appealed is given or the order of
enforcement is made, as the case may be (unless a court shall
otherwise determine).
(ii) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment
referred to in (i) above is given or an order of enforcement
is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due,
the 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 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.
(c) The obligations contained in Subsections (a)(ii) 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
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against the Company, shall apply irrespective of any waiver or extension granted
by any Holder or the 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
its liquidator. In the case of Subsection (b) above, the amount of such
deficiency shall not be deemed to be increased or 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 by Telerate on screen 3194 (or such other means of
reporting the Bank of Canada noon rate as may be agreed upon by each of the
parties to this Indenture) 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 which is required to
purchase such amount in the First Currency at the Bank of Canada noon rate as
reported by Telerate on screen 3194 (or such other means of reporting the Bank
of Canada noon rate as may be agreed upon by each of the parties to this
Indenture) on the date of determination.
SECTION 116. CONFLICT WITH THE TRUST INDENTURE ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by any of Sections 310 to 318,
inclusive, of the Trust Indenture Act, through operation of Section 318(c)
thereof, such imposed duties shall control.
SECTION 117. 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 and as part of the consideration for
the issue of the Securities.
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SECTION 118. SECURITY INTEREST
Where a series of Securities are secured by collateral pursuant to
Section 301 hereof, then to secure the due and punctual payment of all amounts
at any time owing under such series of Securities when and as the same shall be
due and payable, whether on a regularly scheduled payment date, at maturity, by
acceleration, redemption or otherwise, and the performance of all other
obligations of the Company to the Holders or the Trustee, the Company shall
cause appropriate Collateral Documents to be executed and delivered concurrently
with the issuance of such series of Securities. Where Collateral Documents are
executed and delivered concurrently with the issuance of a series of Securities,
the Securities of each series, or the supplemental indenture relating to such
series, shall provide that a breach of the Collateral Documents shall constitute
a Default, and after passage of time, an Event of Default, under the Indenture.
Each Holder, by its acceptance of such series of Securities, consents
and agrees to the terms of each Collateral Document, as the same may be in
effect or may be amended from time to time in accordance with their terms, and
authorizes and directs the Trustee to enter into any Collateral Document and to
perform its obligations and to do or cause to be done all such actions and
things to assure and confirm to the Trustee the security interests contemplated
by the Collateral Documents, as from time to time constituted, so as to render
the same available for the benefit of the Holders of such series of Securities
secured thereby.
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 a Company Officer 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, Bearer
Securities shall have interest coupons attached.
The Trustee's certificate of authentication on all Securities shall be
in substantially the form set forth in this Article.
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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:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: ____________________
This is one of the Securities of the series designated therein referred
to in, and issued under, the within-mentioned Indenture.
Bank of Nova Scotia Trust Company 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 (10) of
Section 301, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or Section 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a 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
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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.
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 (19) 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 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 Securities on any
Interest Payment Date, or the method by which such date or
dates shall be determined, and
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the basis upon which interest shall be calculated if other
than on the basis of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to The
Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and 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 106, the place or places
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;
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(12) whether the amount of payments of principal of (or premium, if
any) or interest, if any, on the Securities of the series may
be determined with reference to an index, formula or other
method (which index, formula or method may be based, without
limitation, on one or more Currencies, commodities, equity
indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a Currency
other than that in which such Securities are denominated or
stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner
of determining the exchange rate between the Currency in which
such Securities are denominated or stated to be payable and
the Currency in which such Securities are to be so payable, in
each case in accordance with, in addition to or in lieu of any
of the provisions of Section 312;
(14) the designation of the initial Exchange Rate Agent, if any;
(15) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and 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 occurrences 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
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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 depository 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 in 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 may be issued bearing no interest
or at a discount below their stated principal amount, and
special considerations applicable to any such discounted
Securities or other Securities offered and sold at par which
are treated as having been issued at a discount for Canadian
and/or U.S. federal income tax purposes;
(22) 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;
(23) 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;
(24) 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
(including modifications 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);
(25) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the
Company), the terms and
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conditions upon which such Securities will be so convertible
or exchangeable;
(26) if payment of the Securities will be guaranteed by any other
Person;
(27) 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;
(28) if other than The Depository Trust Company, the Person
designated as the Depositary for the Securities of such
series;
(29) the percentage or percentages of principal amount at which the
Securities of the series will be issued;
(30) any applicable Canadian and U.S. federal income tax
consequences; and
(31) 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
Certificates 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.
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SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by a Company Officer or if two or more Persons share
such office any one of such Persons. 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 the 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, an Opinion of Counsel
stating:
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(a) if the form of such Securities has been established by or pursuant to a
Board Resolution 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 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.
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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 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 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
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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
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respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the date
of certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary global Security will
be made unless and until such interest in such temporary global Security shall
have been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and Clearstream and not paid as herein provided shall be
returned to the Trustee 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 aggregate principal
amount and tenor.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denomination and of a like aggregate principal amount and tenor, upon surrender
of the Registered Securities to be exchanged at such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the 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.
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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 aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or agency,
with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in 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 tenor and principal amount 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
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with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; provided, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be redeemed and ending on the relevant Redemption Date if the Security for
which exchange is requested may be among those selected for redemption; and
provided, FURTHER, that no Bearer Security delivered in exchange for a portion
of a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, interest or Defaulted Interest, as the case may be, will not
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
If at any time the Depositary of a series notifies the Company that it
is unwilling, unable or no longer qualifies to continue as Depositary of such
series or if at any time the Depositary 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 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, the Company's
election pursuant to Section 301 shall no longer be effective with respect to
the Securities for such series and the Company will execute, 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 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 principal amount of the global Security or Securities representing such
series in exchange for such global Security or Securities.
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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 simultaneously
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 tenor and principal amount and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security, or, in case any such mutilated
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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 tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the 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 proportionally with the Holders of 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.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET.
(a) Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest, 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 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 $1,000,000 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 by virtue of having been such Holder, and such defaulted interest and, if
applicable, interest on such defaulted interest (to the extent lawful) at the
rate specified in the Securities of such series (such defaulted interest and, if
applicable, interest thereon herein collectively called "DEFAULTED INTEREST")
may be paid by the 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 propose
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payment, and at the same time the Company shall deposit with
the Trustee an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted 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 Subsection may be made applicable to any series
of Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on the
date or dates specified on the face of such Security (each an "OPTIONAL RESET
DATE"). The Company may exercise such option with respect to such Security by
notifying the Trustee of such exercise at least 50 but not more than 60 days
prior to an Optional Reset Date for such Security. Not later than 40 days prior
to each Optional Reset Date, the Trustee shall transmit, in the manner provided
for in Section 106, to the Holder of any such Security a notice (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
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(each such period a "SUBSEQUENT INTEREST PERIOD"), including the date or dates
on which or the period or periods during which and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate (or
the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect repayment
by the Company of the principal of such Security on each Optional Reset Date at
a price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain repayment on an Optional Reset Date, the
Holder must follow the procedures set forth in Article Thirteen for repayment at
the option of the 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,
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applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Maturity of any Security, the Holder will
have the option to elect repayment of such Security by the Company on the
Original Stated Maturity at a price equal to the principal amount thereof, plus
interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Maturity thereof, the Holder
must follow the procedures set forth in Article Thirteen for repayment at the
option of Holders, except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the Original
Stated Maturity and except that, if the Holder has tendered any Security for
repayment pursuant to an Extension Notice, the Holder may by written notice to
the Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the 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 (other
than the payment of Additional Amounts, if any), 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 the 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 (other than the payment of Additional
Amounts, if any). None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or
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liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Security in global form or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the 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 of each series
shall be computed on the basis of a 360-day year of twelve 30-day months. For
the purposes of disclosure under the INTEREST ACT (Canada), the yearly rate of
interest to which interest calculated under a Security for any period in any
calendar year (the "CALCULATION PERIOD") is equivalent, is the rate payable
under a Security in respect of the calculation period multiplied by a fraction
the numerator of which is the actual number of days in such calendar year and
the denominator of which is the actual number of days in the calculation 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
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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 Security or
Bearer Security of such series will be made in the Currency in which such
Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 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
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determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the third Business Day (the "VALUATION DATE") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to paragraph (b) above, then, with respect to
each date for the payment of principal of (and premium, if any) and interest, if
any, on the applicable Securities denominated or payable in such a 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, in the case of a Foreign Currency, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the Holder of a
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 one specified Foreign Currency into Dollars at the Market Exchange
Rate on the Conversion Date.
(g) The "DOLLAR EQUIVALENT OF THE CURRENCY UNIT" shall be determined by the
Exchange Rate Agent and, subject to the provisions of paragraph (h) below, shall
be the sum of each amount obtained by converting the Specified Amount of each
Component Currency into Dollars at the Market Exchange Rate for such Component
Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312 the following terms shall have the
following meanings:
A "COMPONENT CURRENCY" shall mean any Currency which, on the Conversion
Date, was a component currency of the relevant currency unit,
including, but not limited to, the Euro.
A "SPECIFIED AMOUNT" of a Component Currency shall mean the number of
units of such Component Currency or fraction thereof which were
represented in the relevant currency unit, including, but not limited
to, the Euro, on the Conversion Date. If after the Conversion Date the
official unit of any Component Currency is altered by way of
combination or subdivision, the Specified Amount of such
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Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by an
amount in such single Currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies expressed
in such single Currency, and such amount shall thereafter be a
Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency
shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar equivalent value at the
Market Exchange Rate on the date of such replacement equal to the
Dollar equivalent value of the Specified Amount of such former
Component Currency at the Market Exchange Rate immediately before such
division and such amounts shall thereafter be Specified Amounts and
such currencies shall thereafter be Component Currencies. If, after the
Conversion Date of the relevant currency unit, including, but not
limited to, the Euro, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with respect
to any Component Currency of such currency unit and is continuing on
the applicable Valuation Date, the Specified Amount of such Component
Currency shall, for purposes of calculating the Dollar Equivalent of
the Currency Unit, be converted into Dollars at the Market Exchange
Rate in effect on the Conversion Date of such Component Currency.
"ELECTION DATE" shall mean the date for any series of Registered
Securities as specified pursuant to clause (13) of Section 301 by which
the written election referred to in paragraph (b) above may be made.
All decisions and determinations of the Exchange Rate Agent regarding
the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the
Currency Unit, the Market Exchange Rate and changes in the Specified Amounts as
specified above shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive for all purposes and irrevocably binding upon the
Company, the Trustee 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. In the event the Company so determines that a Conversion Event has
occurred with respect to the Euro or any other currency unit in which Securities
are denominated or payable, 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 and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency
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as set forth in the definition of Specified Amount above has occurred, the
Company will similarly give written notice to the Trustee and the Exchange Rate
Agent.
The Trustee shall be fully justified and protected in relying and
acting upon information received by it from the Company and the Exchange Rate
Agent and shall not otherwise have any duty or obligation to determine the
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT.
(a) Unless otherwise specified pursuant to Section 301, if and so long as
the Securities of any series (i) are denominated in a Currency other than
Dollars or (ii) may be payable in a Currency other than Dollars, or so long as
it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate Agent
to make the necessary foreign exchange determinations at the time and in the
manner specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) 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
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
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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
(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) 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), interest, if any, and Additional Amounts, if
any, to the date of such deposit (in the case of
Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case
may be;
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(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company in respect of
such series of Securities; 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 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 the principal of (or premium, if
any, on), any Security of that series when it becomes due and
payable;
(2) default in the payment of any interest due 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;
(3) default in the performance, or breach, of any covenant or
warranty in this Indenture in respect of the Securities of
that series, and continuance of
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such default or breach for a period of 60 days after there has
been given to the Company by the Trustee or by the Holders of
at least 25% in principal amount of all Outstanding Securities
of any series affected thereby, a written notice specifying
such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder;
(4) if an event of default (as defined in any indenture or
instrument under which the Company or any Subsidiary of the
Company have at the time of this Indenture or shall thereafter
have outstanding any Indebtedness for borrowed money) shall
happen and be continuing, or the Company or any Subsidiary of
the Company shall have failed to pay principal amounts with
respect to such Indebtedness at maturity (whether or not
constituting such event of default) and such event of default
or failure to pay shall result in such Indebtedness being
declared due and payable and become accelerated, in either
event so that an amount in excess of the greater of
$75,000,000 and 2.5% of Shareholders' Equity shall be or
become due and payable and become accelerated upon such
declaration or prior to the date on which the same would
otherwise have become due and payable and become accelerated
(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 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 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 a Subsidiary of the Company, 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 a Subsidiary of the Company, any requirement 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 event of default shall be applicable together with an
additional seven days before being considered an Event of
Default for purposes of this Indenture;
(5) the taking or entering against the Company or any of its
Subsidiaries of a judgment or decree for the payment of money
in excess of the greater of $75,000,000 and 2.5% of
Shareholders' Equity in the aggregate, if the Company or such
Subsidiary, as applicable, to file an appeal therefrom within
the applicable appeal period or, if the Company or such
Subsidiary, as applicable, do file an appeal therefrom within
such period, such
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judgment or decree is not, and does not remain either vacated,
discharged or stayed within a period of 60 days from the date
of such appeal or the end of the applicable appeal period;
(6) the entry of a decree or order by a court having jurisdiction
in the premises adjudging the Company or a Significant
Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or a
Significant Subsidiary 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 a Significant Subsidiary or of any
substantial part of the property of the Company or a
Significant Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or a Significant
Subsidiary, and the continuance of any such decree or order
unstayed and in effect for a period of 90 consecutive days;
(7) the institution by the Company or a Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the
consent by the Company or a Significant Subsidiary to the
institution of bankruptcy or insolvency proceedings against
the Company or a Significant Subsidiary, or the filing by the
Company or a Significant Subsidiary of a petition or answer or
consent seeking reorganization or relief under the BANKRUPTCY
AND INSOLVENCY ACT (Canada), the COMPANIES' CREDITORS
ARRANGEMENT ACT (Canada) or any other applicable insolvency
law, or the consent by the Company or a Significant Subsidiary
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 a Significant
Subsidiary or of any substantial part of the property of the
Company or a Significant Subsidiary, or the making by the
Company or a Significant Subsidiary of an assignment for the
benefit of creditors, or the admission by the Company or a
Significant Subsidiary in writing of its inability to pay its
debts generally as they become due; or
(8) any other Event of Default provided with respect to Securities
of that series.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in of Section 501 with respect to
Securities of any series at the time Outstanding occurs and is continuing, then
in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities of that series may, subject to
the 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 interest
thereon to be due and payable immediately, by a notice in
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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, on) any
Outstanding Securities of that series (or of all
series, as the case may be) which has become due
otherwise than by such declaration of acceleration,
and interest on such unpaid principal (and premium,
if any) at the rate or rates prescribed therefor in
such Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest, if any, at the
rate or rates prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be) other than the
non-payment of amounts of principal of (or premium, if any,
on) or interest on Securities of that series (or of all
series, as the case may be) which have become due solely by
such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Securities because of an Event of Default
specified in Section 501(4) shall have occurred and be continuing, such
declaration of acceleration shall be
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automatically annulled if the Indebtedness that is the subject of such Event of
Default has been discharged.
SECTION 503. COLLECTION OF DEBT 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, but is not
required to, institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or 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,
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(i) to file and prove a claim for the whole amount of principal
(and premium, if any), or such portion of the principal amount
of any series of Original Issue Discount Securities or Indexed
Securities as may be specified in the terms of such series,
and interest, if any, owing and unpaid in respect of the
Securities and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due to 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 such Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee under Section
607;
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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 Person or Persons entitled
thereto.
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, or for the appointment of 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 those 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 have failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority or more in principal amount of the Outstanding
Securities of that series in the case of any Event of Default
described in Section 501;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Securities of the same series, in the case of any Event of Default
described in Section 501, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and rateable
benefit of all Holders of Securities of the same series, in the case of any
Event of Default described in Section 501.
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment, as provided herein (including, if applicable, Article Fourteen)
and in such Security, of the principal of (and premium, if any) 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.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under Section 501,
PROVIDED that in each case
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(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 them
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.
Except as otherwise provided for herein, 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.
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
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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 each 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(4) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof.
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 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:
(i) 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:
(A) 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
(B) 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
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;
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(ii) 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; and
(iii) 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.
(c) None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal or any
financial liability in the performance of any of their duties or in the exercise
of any of their rights or powers, if there is reasonable ground for believing
that the repayment of such funds or liability is not reasonably assured to them
under the terms of this Indenture or adequate indemnity against such risk is not
reasonably assured to them.
(d) Whether or not therein expressly so provided, except to the extent
expressly provided herein to the contrary, every provision of this Indenture
relating to the conduct or effecting the liability or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed
by them 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) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete
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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 them to be
authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(9) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Securities and this Indenture;
(10) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each
agent, custodian and other Person employed to act hereunder on
behalf of the Trustee; and
(11) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officer's
Certificate may be signed by any person authorized to sign an
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Officer's Certificate, including any person specified as so
authorized in any such certificate previously delivered and
not superseded.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.
The recitals contained herein and in the Securities, except for the
Trustee's certificate 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 the
Trustee 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 their
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, including without limitation, as a creditor of the Company, with
the same rights they 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 Company and the Trustee shall from time to time agree in
writing for all services rendered by them hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(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
their agents and counsel), except any such expense,
disbursement or advance as may result from its negligence or
bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts
hereunder, 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) or (6), 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 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 and have
its Corporate Trust Office in The City of New York to the extent there is such
an institution eligible and willing to serve. 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.
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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 such Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series, delivered to such Trustee
and 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 removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If at any time:
(i) 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
(ii) 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
(iii) the Trustee shall cease to be eligible under Section 608 and
shall fail to resign after written request therefore by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(iv) 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 of such series
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of such
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
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herein for the purposes of clause (i) of the first provisio contained in TIA
Section 310(b): (a) Indenture dated as of June 14, 2002 between the Company and
The Bank of Nova Scotia Trust Company of New York as Trustee, (b) Indenture
dated as of August 10, 1998 between Husky Oil Limited and The Bank of Nova
Scotia Trust Company of New York, as Trustee, and (c) Indenture dated as of
October 31, 1996 between Husky Oil Limited and The Bank of Nova Scotia Trust
Company 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 the Trustee for any cause, with
respect to the Securities of one or more series, the Company 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).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy and a successor Trustee has not been appointed, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security of 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
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indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
as to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the 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
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 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 a 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
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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 such 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. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding, the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series and the Trustee shall give written notice
of such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Any such appointment shall be evidenced
by an instrument in writing signed by a Responsible Officer of the Trustee, and
a copy of such instrument shall be promptly furnished to the Company. Wherever
reference is made in this Indenture to the authentication and delivery of
Securities by the Trustee or the Trustee's 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
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of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give written notice of
such appointment to all Holders of Securities of the series with respect to
which such Authenticating Agent will serve, in the manner provided for in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessors hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
Dated: _________________________
This is one of the Securities of the series designated therein referred
to in, and issued under, the within-mentioned Indenture.
______________________,
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 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.
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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
contained in the most recent list furnished to it as provided in Section 701 and
as to the names and addresses of Holders received by the Trustee in its capacity
as Security Registrar for the applicable series of Securities (if acting in such
capacity).
The Trustee may destroy any list furnished to it as provided in Section
701 upon receipt of a new list so furnished.
Holders may communicate as provided in Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities.
SECTION 703. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company 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 May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders of Securities, in the manner and to the
extent provided in Section 313(c) of the Trust Indenture Act, a brief report
dated as of such May 15 if required by Section 313(a) of the Trust Indenture
Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
(c) A copy of such report shall, at the time of such transmission to the
Holders, be filed by the Trustee with the Company (Attention: Chief Financial
Officer), 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 when the Securities become listed on any securities exchange.
SECTION 705. REPORTS BY THE COMPANY.
The Company shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the
annual reports and of the information, documents and other
reports (or copies of such portions of
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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;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports
with respect to compliance by the Company with the conditions
and covenants of this Indenture as may be required from time
to time by such rules and regulations;
(3) notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, or otherwise report on an annual and
quarterly basis on forms provided for such annual and
quarterly reporting pursuant to rules and regulations
promulgated by the Commission, provide the Trustee:
(A) within time periods required for the filing of such
forms by the Commission, annual reports on Form 40-F
or 20-F, as applicable (or any successor form); and
(B) 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 corporation with
securities listed on the Toronto Stock Exchange,
whether or not the Company has any of its securities
so listed.
Each of such reports, to the extent permitted by the rules and
regulations of the Commission, shall 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; and
(4) transmit to all Holders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, within
30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required
to be filed by the Company pursuant to paragraphs (1), (2) and
(3) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein,
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including the Company's compliance with any of its covenants hereunder (as to
which the Trustee is entitled to rely exclusively on Officer's Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY 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 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, any state thereof or the District of Columbia,
the laws of Canada or any province or territory thereof, or,
if such consolidation, amalgamation, merger, 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 Securities and this Indenture to pay Additional Amounts,
substituting the name of such successor jurisdiction for
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, consolidation, merger,
conveyance, transfer or lease and such supplemental indenture
comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been
complied with.
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This Section shall only apply to a merger, amalgamation or
consolidation in which the Company is not the surviving corporation and to
conveyances, leases and transfers by the Company as transferor or lessor.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any amalgamation or consolidation by the Company with or merger by
the Company into any other 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 consolidation or amalgamation of the Company with or
merger of the Company into any other corporation, or upon any conveyance, lease
or transfer of the property of the Company as an entirety or substantially as an
entirety to any other Person, any of the Company's property or any property of
any Restricted Subsidiary, would thereupon become subject to any Security
Interest, then unless such Security Interest could be created pursuant to
Section 1008 without equally and ratably securing the Securities, the Company,
prior to or simultaneously with such consolidation, amalgamation, merger,
conveyance, lease or transfer, will, as to such property, 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, conveyance,
lease or transfer is to become secured as to such property by such Security
Interest, or will cause such Securities to be so secured; PROVIDED that, for the
purpose of providing such equal and ratable security, the principal amount of
Original Issue Discount Securities and Indexed Securities shall mean that amount
which would at the time of making such effective provision be due and payable
pursuant to Section 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.
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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
(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 which is
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 1008 or otherwise; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
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(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, to cure any
ambiguity, to correct or supplement any provision herein which
may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions
arising under this Indenture; provided such action shall not
adversely affect the interests of the Holders of Securities of
any series and any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant
to Sections 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 defective
or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provision as may
be necessary or desirable, including the making of any
modifications in the form of the Securities and the coupons
appertaining thereto, PROVIDED that such action shall not
adversely affect the interests of the Holders of the
Securities of any series or the coupons appertaining thereto
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, 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 pay Additional
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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.
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SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH THE TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities or 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
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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 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 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) 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 are 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 (B) 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 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 The City of New York, if (but only
if) payment in Dollars of the full amount of such principal, premium or
interest, as the case may be, at all offices or agencies
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outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
any such designation; provided, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities as contemplated by Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the Corporate Trust Office in The City of 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 Person 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 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 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:
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(1) hold all sums held by it for the payment of the principal of
(and premium, if any) and interest, if any, on Securities of
such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the 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 AND NOTICE OF DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from a Company Officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. For purposes of this Section 1004, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture. Upon becoming aware of any Event of Default, the Company will
notify the Trustee as soon as practicable.
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SECTION 1005. ADDITIONAL AMOUNTS.
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 government charge (including penalties, interest and other liabilities
related thereto) imposed or levied by or on behalf of the Government of Canada
or of any province or territory thereof or by any authority or agency therein or
thereof having power to tax ("CANADIAN TAXES"), unless the Company is required
to withhold or deduct Canadian Taxes by law or by the interpretation or
administration thereof by the relevant government authority or agency. 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:
(i) with which the Company does not deal at arm's length (for
purposes of the Income Tax Act (Canada)) at the time of the
making of such payment;
(ii) 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 or territory thereof otherwise than by
the mere holding of Securities or the receipt of payments
thereunder;
(iii) which is subject to such Canadian Taxes by reason of the
Holder's failure to comply with any certification,
identification, documentation or other reporting requirement
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;
(iv) which is subject to such Canadian Taxes by reason of the
beneficial owner of the Securities disentitling such
beneficial owner to the benefit of an applicable treaty;
(v) which failed to duly and timely comply with a timely request
by the Company to provide information, documents,
certification or other evidence concerning such beneficial
owner's nationality, residence, entitlement to treaty
benefits, identity or connection with Canada or any political
subdivision or authority thereof, if and to the extent that
due and timely compliance with such request would have
resulted in the reduction
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or elimination of any Canadian Taxes as to which Additional
Amounts would have otherwise been payable to a Holder of the
Securities on behalf of such beneficial owner but for this
clause; or
(vi) which is a fiduciary or partnership, if and to the extent
that, any beneficiary or settlor of such fiduciary or any
partner in such partnership (as the case may be) will not have
been entitled to receive Additional Amounts with respect to
such payments if such beneficiary, settlor or partner had been
the holder of the Securities.
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, 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.
In the event the Company fails to remit any Canadian Taxes in respect
of which Additional Amounts are payable, 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 payment of Additional
Amounts by the Company, of:
(i) any Canadian Taxes levied or imposed and paid by such Holder
as a result of payments made under or with respect to the
Securities;
(ii) any liability (including expenses) arising therefrom or with
respect thereto; and
(iii) any Canadian Taxes imposed with respect to any reimbursement
under clause (i) or (ii) in this paragraph, but excluding any
such Canadian Taxes on such Holder's net income.
Wherever in this Indenture 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. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary upon the income, profits or property of the Company or any Restricted
Subsidiary, and (2) all material lawful claims for
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labor, materials and supplies which, if unpaid, might by law become a Security
Interest upon any property or assets 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, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
SECTION 1007. 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 and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1008. LIMITATION ON LIENS
So long as any of the Securities are outstanding and subject to all
provisions of this Indenture, the Company will not, and will not permit any
Restricted Subsidiary to create, assume or otherwise have outstanding any
Security Interest on or over any of its or their respective Property, present or
future, securing any Indebtedness of the Company or a Restricted Subsidiary
without also simultaneously or prior thereto securing, or causing such
Restricted Subsidiary to secure, equally and ratably with such other
Indebtedness all of the Securities then Outstanding under this Indenture;
provided, HOWEVER, this covenant shall not apply to or operate to prevent any or
all of the following permitted encumbrances:
(i) any Security Interest existing as of the date of the
Indenture, or arising thereafter pursuant to contractual
commitments entered into prior to such date;
(ii) any Security Interest existing on the property of any Person
when such Person becomes a Restricted Subsidiary, or arising
thereafter pursuant to contractual commitments (including
under indentures, trust deeds and similar instruments) entered
into prior to and not in contemplation of such Person becoming
a Restricted Subsidiary, or is merged into or amalgamated or
consolidated with the Company or a Restricted Subsidiary or
such property is otherwise acquired by the Company or a
Restricted Subsidiary, provided such Security Interest does
not attach to property owned by the Company or a Restricted
Subsidiary prior to such merger, amalgamation or
consolidation;
(iii) any Security Interest arising under partnership agreements,
oil and natural gas leases, overriding royalty agreements, net
profits agreements, royalty trust agreements, master limited
partnership agreements, farm-out agreements, division orders,
unitization and pooling designations, declarations, orders and
agreements, development agreements, operating
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agreements, production sales contracts (including security in
respect of take or pay or similar obligations thereunder),
area of mutual interest agreements, natural gas balancing or
deferred production agreements, injection, repressuring and
recycling agreements, salt water or other disposal agreements,
seismic or geophysical permits or agreements, which in each of
the foregoing cases is customary in the oil and natural gas
business, and other similar agreements which are customary in
the oil and natural gas business, provided in all instances
that such Security Interest is limited to the assets that are
the subject of the relevant agreement;
(iv) any Security Interest already existing on property acquired
(including by way of lease) by the Company or any Restricted
Subsidiaries at the time of such acquisition, PROVIDED that
such Security Interest was not incurred in anticipation of
such acquisition;
(v) any Security Interest in favor of the Company or any
Restricted Subsidiary;
(vi) any Security Interest on property securing: (i) all or any
portion of the cost of acquisition, exploration, drilling,
development, extraction, operation, construction, alteration,
repair or improvement of all or any part of such property,
(ii) all or any portion of the cost of acquiring, developing,
constructing, altering, improving, operating or repairing any
property or assets, real or personal, or improvements used or
to be used in connection with such properties, whether or not
located (or located from time to time) at or on such
properties and (iii) Indebtedness incurred by the Company or
any Subsidiary to provide funds for the activities set forth
in clauses (i) and (ii) above or to refinance Indebtedness
incurred for such purposes. Without limiting the generality of
the foregoing, costs incurred after the date hereof with
respect to (i) or (ii) above shall include costs incurred for
all facilities relating to such properties, or to projects,
ventures or other arrangements of which such properties form a
part or which relate to such properties, 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 properties;
(vii) any Security Interest in connection with Indebtedness which by
its terms is Non-Recourse Debt to the Company or a Subsidiary
of the Company;
(viii) any Security Interest given on Current Assets in the ordinary
course of business to any bank or banks or other lending
institution or institutions to secure any Indebtedness
repayable on demand or maturing, including any right of
extension or renewal, within 12 months after the date such
obligation is incurred;
(ix) any Security Interest on any oil and/or gas property or
products derived from such property to secure obligations, or
guarantees of obligations,
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incurred in connection with or necessarily incidental to
commitments of purchase or sale of, or the transportation,
storage or distribution of, such property or the products
derived from such property;
(x) any Security Interest granted in the ordinary course of
business in connection with Financial Instrument Obligations;
(xi) any Security Interest on Indebtedness issued by the Company or
any of its Subsidiaries and owed to the Company or any of its
Subsidiaries in favor of a trustee or other collateral agent,
for the benefit of holders of publicly issued Indebtedness of
the Company that is issued in connection with, at the same
time and in the same principal amount as such Indebtedness;
(xii) any Security Interest upon specific items of inventory or
other goods and proceeds of the Company or its Restricted
Subsidiaries securing the Company's or such Restricted
Subsidiary's obligations in respect of bankers' acceptances
issued or created for the account of Husky or such Restricted
Subsidiary to facilitate the purchase, shipment or storage of
such inventory or other goods;
(xiii) any Security Interest in respect of (i) liens for taxes and
assessments not at the time overdue or any liens securing
workmens' compensation assessments, unemployment insurance or
other social security obligations, provided, HOWEVER, that if
any such liens, duties or assessments are then overdue, the
Company or the Restricted Subsidiary, as the case may be,
shall be prosecuting an appeal or proceedings for review with
respect to which it shall be entitled to or shall have secured
a stay in the enforcement of any such obligations, (ii) any
lien for specified taxes and assessments which is overdue but
the validity of which is being contested at the time by the
Company or the Restricted Subsidiary, as the case may be, in
good faith, (iii) any liens or rights of distress reserved in
or exercisable under any lease for rent and for compliance
with the terms of such lease, (iv) any obligations or duties,
affecting the property of the Company or that of a Restricted
Subsidiary to any municipality or governmental, statutory or
public authority, with respect to any franchise, grant,
license or permit and any defects in title to structures or
other facilities arising from the fact that such structures or
facilities are constructed or installed on lands held by the
Company or the Restricted Subsidiary under government permits,
leases, licenses or other grants, (v) any deposits or liens in
connection with contracts, bids, tenders or expropriation
proceedings, surety or appeal bonds, costs of litigation when
required by law, public and statutory obligations and liens or
claims incidental to current construction or operations
including but not limited to, builders' mechanics', laborers',
materialmens', warehousemens' carriers' and other similar
liens, (vi) the right reserved to or vested in any
municipality or governmental or other public authority by any
statutory provision or by the terms of any lease, license,
franchise, grant or permit to periodic payments as a condition
to
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the continuance thereof, (vii) any Security Interest the
validity of which is being contested at the time by the
Company or a Restricted Subsidiary in good faith or payment of
which has been provided for by creation of a reserve in an
amount in cash sufficient to pay the same in full, (viii) any
easements, rights-of-way and servitudes (including, without in
any way limiting the generality of the foregoing, easements,
light and power or telephone conduits, poles, wires and
cables) and minor defects, or irregularities of title that, in
the opinion of the Company, will not in the aggregate
materially and adversely impair the use or value of the land
concerned for security to a public utility or any municipality
or governmental or other public authority when required by
such utility or other authority in connection with the
operations of the Company or the Restricted Subsidiary, as the
case may be, (ix) any liens and privileges arising out of
judgments or awards rendered as claims filed with respect to
which the Company or the Restricted Subsidiary, as the case
may be, is contesting in good faith, and (x) reservations,
limitations, provisos and conditions, if any, expressed in or
affecting any grant of real or immovable property or any
interest therein;
(xiv) 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 Security Interest referred
to in the foregoing clauses; provided, HOWEVER that (A) such
new Security Interest shall be limited to all or part of the
property which is secured by the Security Interest plus
improvements on such property and (B) the Indebtedness secured
by the new Security Interest is not increased from the amount
of the Indebtedness 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; and
(xv) any Security Interest that would not be permitted by the
foregoing clauses (including any successive extensions,
renewals, alterations, refinancings, replacements, exchanges
or refundings thereof), PROVIDED that the aggregate
Indebtedness outstanding and secured under this clause does
not (calculated at the time of the granting of the Security
Interest) exceed an amount equal to 10.0% of Consolidated Net
Tangible Assets.
Notwithstanding the forgoing, transactions such as: (i) the sale
(including any forward sale) or other transfer of 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) the transfer of any other interest in property of the character
commonly referred to as "production payment", will not constitute a Security
Interest and will not result in the Company or a Restricted Subsidiary being
required to secure the Securities.
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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 to 1009,
inclusive, or, as specified pursuant to Section 301(17) for Securities of such
series, in any covenants of the Company added to this 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.
SECTION 1010. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If any Securities are Original Issue Discount Securities, then the
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the end
of such year and (ii) such other specified information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
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.
In case of any redemption at the election of the Company, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee 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 to the
Trustee an Officer's Certificate evidencing compliance with such restriction.
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SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series [not previously called for redemption], by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions of the principal of Securities of such series;
provided, HOWEVER, that no such partial redemption shall reduce the portion of
the principal amount of a Security not redeemed to less than the minimum
authorized denomination for Securities of such series established pursuant to
Section 301.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any 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 Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security,
the Holder will receive, without charge, a new Security or
Securities of authorized denominations for the principal
amount thereof remaining unredeemed,
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(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.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Redemption Price of, and accrued interest, 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 applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if
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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 for 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.
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SECTION 1108. TAX REDEMPTION.
Unless otherwise specified pursuant to Section 301, the Company shall
have the right to redeem, 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
the Company (or its successor) determines that (i) as a result of (A) any
amendment to or change (including any announced prospective change) in the laws
(or any regulations thereunder) of Canada (or the jurisdiction of organization
of the Company's successor) or of any political subdivision or taxing authority
thereof or therein, as applicable, or (B) any amendment to or change in an
interpretation or application of such laws or regulations by any legislative
body, court, governmental agency or regulatory authority (including the
enactment of any legislation and the publication of any judicial decision or
regulatory determination), which amendment or change is announced or becomes
effective on or after a date specified pursuant to Section 301, if any date is
so specified, or the date a party organized in a jurisdiction other than Canada
or the United States becomes the Company's successor, 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 (ii) on or after a date
specified pursuant to Section 301, if any date is so specified, or the date a
party organized in a jurisdiction other than Canada or the United States becomes
the Company's successor, 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 the jurisdiction or organization of the Company's successor) or any
political subdivision or taxing authority thereof or therein, including any of
those actions specified in (i) 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 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, 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 (a) 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 (b) 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
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Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
Subject to Section 1203, in lieu of making all or any part of any
mandatory sinking fund payment with respect to any Securities of a series in
cash, the Company may at its option (1) deliver to the Trustee Outstanding
Securities of a series (other than any previously called for redemption)
theretofore purchased or otherwise acquired by the Company together in the case
of any Bearer Securities of such series with all unmatured coupons appertaining
thereto, and/or (2) receive credit for the principal amount of Securities of
such series which have been previously delivered to the Trustee by the Company
or for Securities of such series which have been redeemed either at the election
of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of the same series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series; provided, HOWEVER, that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, 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
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and at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
On or prior to 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.
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 a 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
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Date) accrued interest, if any, on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION.
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places 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.
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If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall
not be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART.
Upon surrender of any Registered Security which is to be repaid in part
only, the Company shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security, without service charge and at the expense of the
Company, a new Registered Security or Securities of the same series, of any
authorized denomination specified by the Holder, in an aggregate principal
amount equal to and in exchange for the portion of the principal of such
Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, the provisions of this Article shall 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,
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"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 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
obligations under Section 607 and (D) this Article. Subject to compliance with
this Article, 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
1009, 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 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
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applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the
Holders of such Securities and any related coupons, (A) an
amount (in such Currency in which such Securities and any
related coupons are then specified as payable at Stated
Maturity), or (B) Government Obligations applicable to such
Securities (determined on the basis of the Currency in which
such Securities are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms
will provide, not later than one day before the due date of
any payment of principal of and premium, if any, and interest,
if any, under such Securities and any related coupons, money
in an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, (i) the principal of (and premium, if
any) 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 (6) and
(7) 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.
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(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 U.S. federal income tax
purposes as a result of such defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such defeasance had not occurred.
(5) 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.
(6) 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).
(7) 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,
provincial or territorial 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).
(8) 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.
(9) 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
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covenant defeasance under Section 1403 (as the case may be),
have been complied with.
(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 a Trustee (or
other qualifying trustee, collectively for purposes of this Section, the
"Trustee") pursuant to Section 1404 in respect of such Outstanding Securities
and any related coupons shall be held in trust and applied by such 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 such Trustee may
determine, to the Holders of such Securities and any related coupons of all sums
due and to become due thereon in respect of principal (and premium, if any) and
interest, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(1) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 1404(1) has been made in respect of such Security, or (b) a
Conversion Event occurs as contemplated in Section 312(d) or 312(e) or by the
terms of any Security in respect of which the deposit pursuant to Section
1404(1) has been made, the indebtedness represented by such Security and any
related coupons shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as they become due out of the proceeds
yielded by converting (from time to time as specified below in the case of 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 such 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, such
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or
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Government Obligations (or other property and any proceeds therefrom) held by it
as provided in Section 1404 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to such 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 a 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.
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 The City of New York, in Toronto or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided for in Section 106, not less than 21 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Company or the 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
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above specified, as the case may be, may determine the time and place in The
City of New York, in Toronto or in London 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 or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and their 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 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 casted 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
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is less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of not less than such specified percentage in principal amount of the
Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favour 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 it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxyholder 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 proxy holders, 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
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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 a proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers, if
any, of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in 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, 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
HUSKY ENERGY INC.
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA TRUST
COMPANY 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
HUSKY ENERGY INC.
% Notes due
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 any Person(s) that is not a citizen or resident of the United States; a
corporation or partnership (including any entity treated as a corporation or
partnership for United States Federal income tax purposes) created or organized
in or under the laws of the United States, any state thereof or the District of
Columbia unless, in the case of a partnership, Treasury Regulations provide
otherwise; any estate whose income is subject to the United States Federal
income tax regardless of its source or; a trust if (A) a United States court can
exercise primary supervision over the trust's administration and one or more
United States persons are authorized to control all substantial decisions of the
trust or (B) a trust in existence on August 20, 1996, and treated as a United
States person before this date that timely elected to continue to be treated as
a United States person ("UNITED STATES PERSONS(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
Regulation 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 Husky Energy Inc. 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 Regulation 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.
-2-
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
operating procedures if any applicable statement 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
proceeding 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 proceeding.
Dated:
[TO BE DATED NO EARLIER THAT THE 15TH
DAY PRIOR TO (I) THE EXCHANGE DATE OR (II) THE
RELEVANT INTEREST PAYMENT DATE OCCURRING
PRIOR TO THE EXCHANGE DATE, APPLICABLE]
[NAME OF PERSON MAKING CERTIFICATION]
By:
--------------------------------
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATION 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
HUSKY ENERGY INC.
% Notes due
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 person 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 any person(s) that is not a
citizen or resident of the United States; a corporation or partnership
(including any entity treated as a corporation or partnership for United States
Federal income tax purposes) created or organized in or under the laws of the
United States, any state thereof or the District of Columbia unless, in the case
of a partnership, Treasury Regulations proved otherwise; any estate whose income
is subject to the United States Federal income tax regardless of its source or;
a trust if (A) a United States court can exercise primary supervision over the
trust's administration and one or more United States persons are authorized to
control all substantial decisions of the trust or (B) a trust in existence on
August 20, 1996, and treated as a United States person before this date that
timely elected to continue to be treated as a United States person ("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 Regulation 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 wither case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise Husky Energy
Inc. 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 Regulation Section
1.163-5(c)(2)(i)(D)(7)) and, to the further effect, that financial institutions
described in clause (ii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes or
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.
-2-
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certificate is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:
[TO BE DATED NO EARLIER THAT THE 15TH
DAY PRIOR TO (I) THE EXCHANGE DATE OR (II) THE
RELEVANT INTEREST PAYMENT DATE OCCURRING
PRIOR TO THE EXCHANGE DATE, APPLICABLE]
[EUROCLEAR BANK S.A./N.V., as
Operator of the [Euroclear] System]
[[CLEARSTREAM] BANKING]
By:
-------------------------------
Name:
Title: